1 FEDERAL COMMUNICATIONS COMMISSION

REORGANIZATION

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HEARINGS

BEFORE A

KSU LIBRARIES

SUBCOMMITTEE OF THE

COMMITTEE ON

— ^ I ’ERSTATE AND FOR EIGN COMMERCE

■ ? HOUSE OF REPRESE NTATIVE S

j E 3 EIG HT Y-SEVE NT H CONGR ESS

D F IR S T SE SS IO N

= = ° ON

■ 3 H .R . 7 3 3 3

A B IL L TO AM EN D T H E CO MMUN ICAT IO NS ACT OF 1934,

FO R TH E PU RPO SE OF FA CIL IT A TIN G T H E PR OM PT AND 

ORD ER LY CO ND UC T OF T H E BUSI NESS O F T H E FE D ERA L 

CO MMUN ICAT IO NS CO MMI SS ION

JU N E 13, 14, AN D 15, 1901

P ri n te d fo r th e use of th e Com mitt ee on In te rs ta te a nd For ei gn Co mm erc e

71667 WASHINGTON : 1961
COM MIT TE E ON IN TER STA TE AN D FO REIG N CO MME RC E

JOHN BELL WILLIAMS, Mississippi

PETER F. MACK, J r., Illinois

KENNETH A. ROBERTS, Alabama

MORGAN M. MOULDER, Missouri

HARLEY O. STAGGERS, West Virginia

WALTER ROGERS, Texas

SAMUEL N. FRIBDEL, Maryland

JOHN J. FLYN.T, JR., Georgia

TORBERT H. MACDONALD, Massachusetts

GEORGE M. RHODES, Pennsylvania

JOHN JARMAN, Oklahoma

LEO W. O’BRIEN, New York

JOHN E. MOSS, California

JOHN D. DINGELL, Michigan

JOE M. KILGORE, Texas

OREN HARRIS, Arkansas, Ch airm an

JOHN B. BENNETT, Michigan

WILLIAM L. SPRINGER, Illinois

PAUL F. SCHENCK, Ohio

J. ARTHUR YOUNGER, California

HAROLD It. COLLIER, Illin ois

MILTON W. GLENN, New Jersey

SAMUEL L. DEVINE, Ohio

ANCIIER NELSEN, Minnesota

HASTINGS KEITH, Massachusetts

WILLARD S. CURTIN, Pennsylvania

ABNER W. SIBAL, Connecticut

VERNON W. THOMSON, Wisconsin

PETER H. DOMINICK, Colorado

PAUL G. ROGERS, Florida

ROBERT W. HEMPHILL, South Carolina

DAiN ROSTENKOWSKI, Illinois

JAMES C. HEALEY, New York

W. E. Williamson, Clerk

Kenneth J. Painter, Agg ista nt Clerk

Andrew Stevenson

Kurt Borchardt

Profesgional Staff

Sam G. Spal

Martin W. Cunningham

Spec ial Sub comm itt ee on Regulatory Agencies

OREN HARRIS, Arkansas, Chairman

WALTER ROGERS, Texas JOHN B. BENNETT, Michigan

JOHN J. FLYNT, J r., Georgia WILLIAM L. SPRINGER, Illinois

JOHN E. MOSS, California J. ARTHUR YOUNGER, California

PAUL G. ROGERS, Florida VERNON W. THOMSON, Wisconsin

Charles P. Howze, Jr., Chief Coungel

Herman Clay Beasley, Subcom mittee Clerk

n
C O N T E N T S

Pact

Tex to fI I. lt. 7333 . ____ ________________________________________ 1

Report of Federal Communications Commission______________________ 3

Sta tem ent of—

Bartley, Robert T., Commissioner, Federal Communications Commission___________________________________________________ 37

Booth, Robert M., Jr., presiden t, Federal Communications Bar

Association________________________________________________ 43

Craven, T. A. M., Commissioner, Federal Communications Commission___________________________________________________ 37

Cross, John S., Commissioner, F ederal Communications Comm ission,. 37

Ford, Frederick W., Commissioner, Federal Communications Commission___________________________________________________ 33

Geller, Henry, Associate General Counsel, Federal Communications

Commission_______________________________________________ 20

Hyde, Rosel IL, Commissioner, Federal Communications Commission, 34

Landis, James M., Special Assistant to the Pre sident_______________ 10

Lee, R obert E., Commissioner, Federal Communications Commission, 37

Marks, Leonard H., a ttorne y, Washington, D.C________________ 65

Minow, Hon. Newton M., Chairman, Federal Communications Commission___________________________________________________ 20

Paglin, Max D., General Counsel, Federal Communications Commission______________________________________________________ 20

Additional information s ubm itte d for the record by—

Colby, Lauren A., state me nt o f_________________________________ 63

Columbia Broadcasting System, Inc., letter from Thom as K. Fisher, 

vice president and general counsel, and Leon R. Brooks, assistant

general atto rney___________________________________________ 59

National Association of Broadcasters, le tter from lx*Roy Collins_____ 59

m

FED ERAL COMM UNICATIONS COMMISSION

REO RGANIZAT ION

TUESDAY, JU NE 13, 1961

H ouse of R e p r e se n t a t iv e s,

S pec ia l S u b c o m m it t e e on R eg ula to ry A g en cie s

of t h e C o m m it t e e on I n ter sta te and F oreig n C o m m erce,

Wa# king ton, D.G.

The subcommittee met at 10 a.m., pursu ant to call, in room 1334, 

New House Office Building.

Pres ent: Representatives H arris (presidin g), Moss, Rogers of Flo rida, Springer, Younger, Thomson. Hemphill, and Collier.

Also present : Ku rt Borch ardt. professional staff member; Allen H. 

Perley, legislative counsel, House of Representatives; Charles P. 

Howze, Jr., subcommittee chief counsel; Rex Sparger, subcommittee 

special assistan t: and Herman Clay Beasley, subcommittee clerk.

The Chairman. The committee will come to order.

This morning the committee is meeting to hold hearings on H.R. 

7333, which is a result of the submission to Congress of Reorganization Plan No. 2 by the President of the United States and subsequent actions by this committee and other committees, regarding that 

proposal. The following consideration has been given to the plan:

I had the staff prepare a bill along the general lines of the plan. 

In view of the fact that two important amendments to the basic act, 

the Federal Communications Act, were involved, it was thought much 

more desirable to consider the matter through the regular legislative 

channels.

(H.R. 7333 and repo rt follow:)

[H .R . 7333, 87tli Cong., 1s t se ss .]

A B IL L To am en d th e Com m un ic at io ns Act of 1934, fo r th e pu rp os e of fa cil it a ti n g th e 

pro m pt and or de rly co nd uc t of th e bu sine ss of th e F ed er al Com m un ications C om miss ion

Be it enacted by the Senate and House of Representatives of the United

Sta tes of America in Congress assembled, Th at subsection (c) of section 5 of 

the Communications Act of 1934 (47 U.S.C. 155(c)), relatin g to a “review 

staff”, is hereby repealed.

Sec. 2. Subsection (d) of such section 5 is amended to read as follows:

“ (d) (1) When necessary to the prop er functioning of the Commission and 

the prompt and orde rly conduct of its business, the Commission may by published 

rule or orde r delegate any of its functions to a division of the Commission, an 

individual Commissioner, a hea ring examiner, an employee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter, and may at any time amend, modify, or rescin d any such rule or order. 

Any such rule or order may be adopted only by vote of a majority of the members of the Commission then holding office, hut may be rescinded by vote of a 

majority, less, one, of the members of the Commission then holding office. The 

requ irem ents of parag rap hs (a ), (b), (c), and (d) of section 4 of the Admin-
2 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Istrative Procedure Act shal l apply in the case of any such rule. Nothing in 

this par agrap h shall authorize the Commission to delegate to any person or 

persons, other than the persons ref err ed to in clause s (2 ) and (3J of section 

7 (a ) of the Adm inis trative Proc edure Act, the funct ion of condu cting any he aring to which such section 7 (a ) applies.

“ (2 ) Any order, decision, or rep ort made, or other actio n take n, pu rsu ant to 

any such delegation, unless reviewed as provided in pa rag rap h (3 ), shall have 

the same force and effect, and shall be made, evidenced, and enforc ed in the 

same man ner as an order , decision, report, or oth er actio n of the Commission.

“ (3 ) Any person aggriev ed by any such order , decision, repo rt, or other action may, wit hin such time a nd in such manne r as the Commission shall by rule 

prescribe, make appli catio n for review by the Commission, and every such applica tion shal l be passed upon by the Com mission; and the Commission on its 

own in itiative , with in such time and in such man ner as it shall by rule prescribe, 

may review any such order , decision, repo rt, or oth er action. A vote of a 

majo rity, less one, of the members of the Commission then holdi ng office shal l 

be sufficient to bring any such order, decision, report, or oth er actio n before the 

Commission for review. Whenever the Commission gran ts an appl icat ion for 

review, or on its own ini tiativ e tak es action to review, it may affirm, modify, 

or set asid e the order, decision, repo rt, or actio n being review ed or may orde r a 

reh eari ng upon such order, decision, repo rt, or action und er section 405.

“ (4 ) There is hereby tra ns ferre d from the Commission to the Cha irman of 

the Commission the au tho rity to assig n Commission personnel, exclusive of 

members of the Commission, to perf orm such function s as may be delegated by 

the Commission pu rsu ant to pa rag rap h (1 ) of thi s subsection.

“ (5 ) The Secreta ry and seal of the Commission shal l be the Sec reta ry and 

seal of each divisio n of the Commission, each indi vidual Commissione r, each 

examiner, and each employee board or indi vidu al employee exer cisin g functions 

delegated pu rsu ant to pa rag rap h (1 ) of th is su bsectio n.”

Sec. 3. Section 401) of such Act (47 U.S.C., sec. 409 ) is amend ed by stri kin g 

out subse ctions (a ), (b ), and (c ) thereof and inse rtin g in lieu of such subsections t he fo llowin g:

“ (a ) The officer or officers conducting the hea ring in any case of adjudi cation (a s defined in the Adm inis trat ive Procedure Act) arisin g und er this Act 

sha ll pre pare and file an initial decision, except wher e the hea ring officer becomes una vail able to the Commission or wher e the Commission finds upon the 

record th at due and timely execution of its func tions imp erati vely and unavoid ably require th at the record be certified to the Commission for ini tial or 

final decision. All decisions, including the ini tia l decision, shal l become a pa rt 

of the record and shall include a statem ent of (1 ) findings and conclusions, as 

well as the basis ther efor , upon all ma terial issues of fact, law, or discretion, 

presented on the record; and (2 ) the appr opr iate decision, order, or requirement.

“ (b ) In any case of adj udi cation (a s defined in the Adm inis trative Proce dure 

Ac t) whic h has been desig nated for a hea ring by the Commission, no officer conduct ing or par tici pat ing in the conduct of such hea ring shall, except to the exte nt requ ired for the dispo sition of ex pa rte ma tte rs as auth oriz ed by law, 

cons ult any person (exc ept ano the r officer particip ating in the conduct of such 

he ari ng ) on any fac t or question of law in issue, unless upon notice and opportun ity for all partie s to par ticipate. In the performa nce of his duties , no such 

officer shal l be responsible to or subj ect to the supervision or direc tion of any 

person engaged in the perf orm ance of investigative, prosecutory , or othe r function s f or the Commission or any othe r agency of the Government. No officer conducting or par tici pat ing in the conduct of any such hea ring shall advise or 

cons ult with the Commission or any member or employee of the Commission 

(ex cep t ano the r officer par tic ipa tin g in the conduct of such he ari ng ) with respect to the initial decision in the case or with respect to excep tions take n to 

the findings, rulings, or recommendations made in such case.

“ (c ) No person or persons engaged in the perfo rmance of inve stigativ e or 

prosecuting functions for the Commission, or in any litig atio n before any cou rt 

in any case aris ing und er thi s Act, shall advise, consult, or particip ate in any 

case of adju dicatio n (a s defined in the Adm inistrativ e Proc edure Ac t) which has 

been designated for a hea rin g by t he Commission, except as a witn ess or counsel 

in public proceedings.”

Sec. 4. Notwith stan ding the foregoing provisions of this Act, the second sentence of subsection (b ) of section 409 of the Communic ations Act of 1934 (which
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 3

relates to the filing of exceptions and the presentation of oral argu men t), as in 

force at the time of the enactment of this Act, shall continue to be applicable 

with respect to any case of a djudication (as defined in the Administrative Procedure Act) set for hearing by the Federal Communications Commission by 

a notice of hearing issued prior to the date of the enactment of this Act.

R epor t of t iie F ed eral Co m m u n ic a tio n s Co m m is sio n

H.R. 7333 would markedly change the present procedural provisions of the 

Communications Act in the following essential respects: (a ) it would abolish the 

review staff created by section 5(c ) and significantly revise the separation of 

functions and ex parte ban provisions of section 4011(c) (1 ) and (2 ) ; (ft) it 

would abolish the present right to obtain review, including oral argument, of any 

initia l decision and substitute theref or discretionary review, upon the vote of 

a majority, less one, of the Commissioners in office; (c) it would permit the 

Commission to delegate adjudicatory matters (now precluded by secs. 5 (d )( 1 ) 

and 4 0 9 (b )), subject to rescission by a vote of a majority, less one, of the Commissioners in office; and (d ) it would transfer from the Commission to the 

Chairman the autho rity to assign Commission personnel, excluding Commissioners, to perform the functions delegated by the Commission.

We shall state our views on each of these four ar eas in the ensuing discussion. 

In general, the Commission supports the objectives of t he bill in each area but, 

with the exception of the provision abolishing the review staff, would urge substantial revisions for the reasons set forth. We have attached, as appendix A, 

a dra ft of a bill which would carry out the objectives of H.R. 7333 but along thl 

lines of the revisions suggested by a majority of t he Commission.

I

(1 ) The Commission strongly favors the repeal of the provisions of 5 (c ), 

relatin g to the review staff. Under these provisions, the review staff, even though 

it has no other functions than to assist the Commission in adjudicatory cases, 

is nevertheless precluded from making any recommendations to the Commission. 

This restrictio n, which is not applicable to the opinion writing staff of any other 

Federal regulatory agency (Davis, “Administrative Law Treati se,” vol. 2, p. 197 ), 

is both wasteful and inefficient. It is wasteful in tha t it deprives the Commission of the full assistance of which this review staff is capa ble; it is inefficient 

because it requires a two-step procedure (of instructions and dra ft orde r) even 

as to the most routine interlocutory matters. The repeal of these unduly restrictive provisions should contribute to speedier action, w ithout in any day depriving 

parti es of any rights. On the contrary, the safeguards of section 5(c ) of the 

Administrative Procedure Act would be applicable; and any deficiency in this 

act (such as with respect to initi al licensing proceedings) could be supplied by 

an approp riate provision in section 4 0 9 (c )( 2 ) (see propsed revision of 40 9(c ) 

(2 ) in appendix A, a ttached hereto).

(2 ) In section 3( c ), the bill would re tain the separation of functions provisions 

of subsection (3 ) of 40 9(c ) but would eliminate the present subsection (2 ). The 

Commission believes tha t the proposal in section 3 (c ) is unsound. First, the 

ban in (c ) (2 ) agains t ex parte presentat ions by a “person who has partic ipated 

in the presentation or preparation for presentation of [an adjud icato ry] 

case * * *” should not be dropped. While i t is true th at ex parte presentations 

would be barre d irrespective of section 4 0 9 (c )( 2 ), 1

 tha t provision does serve 

the function of proscribing such conduct by parties and thus could be the basis 

of criminal action under section 501. Furthermore, it is desirable tha t the law 

be explicit on this subject, and not dependent on case precedent, however well 

established. For this reason, we propose in the dra ft in appendix A to keep the 

proscription of (c )( 2 ) and, indeed, to remove the present limitation, which 

restricts its application only to those persons who have particip ated in the case.

Second, it would be much sounder to retur n to the separation of functions 

provisions of section 5 (c ) of thhe Administrativ e Procedure Act. For again, it is 

wasteful and serves no valid purpose whatever to cut off the Commission in adjudicatory cases from its chief legal officer, the General Counsel (see pp. 57-58,

1

 See, e.g., Morga n v. Uni te d S ta te s, 298 U.S . 468, 480 ; Morg an v. United S ta te s, 804 U.S . 1, 19 -2 0 : Ohio Be ll Te le ph on e Co. v. Pub lic U tilities Com mission , 301 U S. 292 , 304 ; 

Sa ng am on Val le y Tel ev is io n Corp. v. U ni te d Sta te s, 269 F. 2d 221 , 224 (C .A.D.C.).
4 FED ERAL COM MUN ICAT IONS COM MIS SIO N REORGA NIZA TION

“A tto rn ey G en er al ’s M an ua l on A dm in is tr at iv e Pro ce dur e A ct” ) ; yet (c ) (3 ) 

do es th is w ith its re fe re nc e to “* * * pe rs on s en ga ge d * * * in an y litigat io n 

be fo re an y co urt * ♦ *.” The te st la id do wn in th e A dm in is tr ati ve Pro ce du re 

A ct (se c. 5 (c )) is th e only va lid one ; na mely, w het her th e st af f pe rs on has en ­

ga ge d in in ve st ig at iv e or pr os ec ut in g fu nc tion s “in tl ia t or a fa ctu all y re la te d 

ca se .” T his te st is d irec te d sq ua re ly to th e fa ir ness p roblem invo lved. We ha ve 

th er ef ore prop os ed in ap pe nd ix A a re tu rn to th e st andard of th e A dm in is tr at iv e 

Pro ce dure Act, w ith the ex ce pt ion th a t th is st an d ard wo uld be ap pl ic ab le to all 

ca se s of ad ju di ca tion , incl ud in g in it ia l lic en sin g.

(3 ) Se ction 4 0 9 (c )( 1 ) is re vi se d in se ction 3 (b ) on ly by th e su bst it uti on of 

“officer” fo r “e xam in er ”. H er e ag ai n we su gg es t a re tu rn to th e st an d ard of 

th e A dm in is tr at iv e Pro ce du re A ct, se ction 5 (c ) 2 *. The co nd uc t of hea ri ng officers 

cl ea rly sh ou ld be go ve rned by one gen er al st andard , and no t by ad hoc le gi slat io n 

fo r one p art ic u la r agency; th e fu nct io ns of an FC C ex am in er in co nd uc ting an 

FC C ca se in no w ay differ fr om th e fu nct io ns of a FT C, ICC, etc . ex am in er , all 

of wh om a re gov erne d by th e A dm in is tr at iv e Pro ce dure A ct. R ath er th an a m en ding th e Com mun ications Ac t, th e A dm in is tr at iv e Pro ce dur e Act sh ou ld be revis ed, if it is de sire d to a lt e r th e go ve rn in g st an d ard fo r ex am in er s (a s, fo r 

ex am ple, to p erm it con su ltat io n on q ue st io ns of law on ly w ith fello w exam in ers )8

. 

II

The bi ll wou ld re pe al th e second se nt en ce of 40 9( b) an d wou ld m ak e review 

of an ex am in er ’s in it ia l de cision dis cr et io nar y, up on th e vo te of a m aj ori ty of 

th e Com mission ers less one . The Co mm iss ion be lie ve s th a t a p art y sh ou ld ha ve 

a ri ght to obta in som e adm in is tr ati ve revi ew of an ex am in er ’s in it ia l decis ion . 

T hi s is th e ge ner al p att ern in th e F edera l co ur ts , w he re (w it h cert ain ex ­

ce pt io ns ) a p art y ca n ob ta in review of a tr ia l court 's de cis ion in th e co urt of 

ap pe als. See 28 U.S.C. 1291. He ca nno t re quir e th e ap pe al s co urt en ba nc to 

h ear su ch an ap pe al , no r ca n he, as a m att er of ri ght, ob ta in ora l ar gu m en t in 

ev er y ca se. So, also , we wou ld b estow up on th e Co mm iss ion th e au th o ri ty to us e 

pa ne ls o r (s in ce we are in th e adm in is tr ati ve field) em plo yee boar ds an d to ac t 

w ithout ora l ar gum en t in th os e few in st an ce s w he re it is appro pri ate to do so. 

B u t we wou ld af fo rd th e ri g h t to adm in is tr ati ve review .

I t is no an sw er , we t hi nk , to sa y th a t a p art y ca n ob ta in ju dic ia l review of th e 

ex am in er’s de cis ion, whe n th e Co mm iss ion de nies fu rt h er adm in is tr ati ve rev iew . 

For, th e ag en cy has fa r gre ate r, an d in de ed co mplete ly di ffer en t, leew ay in re ­

view ing an exam in er ’s dec isi on th an do es a court pa ss in g on an ag en cy dec ision. 

Co mpa re, Fed er al Com mun ications Com missio n v. A llen to w n B ro ad ca stin g Corp.,

349 U.S. 35 8; Unive rs al Ca me ra Corp. v. Nat io na l La bo r Rel at io ns Bo ard, 349 

U.S . 47 4; Gra y v. Po we ll, 314 U.S. 40 2; Rad io Officers' Un ion v. Nat io na l La bo r

R el at io ns Boa rd , 347 U.S. 17 ; Corn Pro du ct s Refin in g Co. v. Fed er al Tra de Com ­

m ission , 324 U.S. 72G. The ci te d ca se s m ak e cl ea r th a t it is th e ag en cy which 

h as “the po wer of ru ling on fa cts an d po lic ies in th e first in st an ce ” (F ed er al

Com m un icat io ns Com miss ion v. A llen to w n Bro ad ca sting Corp., a t p. 3G4; sec. 

8 (a ) of the A dm in is tr at iv e Pro ce du re A ct) . Thu s, a p art y m ay be effecti ve ly cu t 

off from upse ttin g a ro uti ne adm in is tr ati ve decis ion which co uld go eit her way 

(com pa re, N at io na l La bo r R el at io ns Bo ar d v. Nev ad a Con so lid ated Co ppe r Corp.,

31G U.S. 10 5), simply be ca us e he c an no t obt ai n fu rth e r adm in is tr ati ve rev iew .

Nor do we th in k su ch m an dato ry re vi ew wi ll re su lt in clo gg ing th e Co mm issi on ’s pr oc esses, prov id ed th a t th e Co mm iss ion is giv en fu ll dis cr et io n w ith re ­

sp ec t to de le ga tio ns an d ora l ar gu m en t. If th e ap pe al invo lves ro uti ne m at te rs , 

it c an be he ar d by a p an el or emp loy ee b oa rd : i f it i s who lly la ck in g in su bs tanc e, 

it could be qu ickl y reso lved on th e pl ea di ng s. Any ap pl ic at io n fo r di sc re tionar y 

revi ew of th e pan el ’s or board ’s de cis ion cou ld he pr om pt ly de term in ed , aft er 

co ns id er at io n of th e st af f’s an al ysi s an d reco mmen da tio n. Tn sh or t, we fee l th a t 

th e pr oc ed ur e se t ou t in ap pe nd ix A will g re atl y be ne fit th e Co mm ission , part ic ­

u la rl y in fr ee in g th e Com miss ione rs to co nce ntr at e on im port ant po lic y m at te rs .

2

 T ills se ction prov ides, In p ert in ent p a r t: “ * * * Pave to th e ex te nt re qu ired fo r th e

dl sn os itio n of ex part e m att ers as au th ori ze d by law, no suc h rh eari ng] officer sh al l con ­

su lt an y pe rson or p art y on an y fa ct In issu e un less up on no tic e an d opport unity fo r all 

part ie s to p a rt ic ip a te : no r sh all such officer be resp on sible to or su bj ec t to th e su pe rvision 

or direc tion of an y officer, em plo yee, or ag en t en ga ge d in th e pe rfor m an ce of in ve st ig at iv e

or pro se cu ting fu nct io ns fo r an y ac en cv . * * *”

a

 If sec. 40 9(c ) (1 ) is to be re ta in ed , we su gg es t th a t it be re vi se d to per m it ex am in er s

to co ns ul t fello w ex am in er s on qu es tion s of law . Such co ns ul ta tion wo uld ap pe ar

des irab le an d does no t in fr in ge on th e fa ir ness of th e proc ee ding . We ha ve in ap p. A,

sec. 409(c ), so revise d th e Com mun ications Ac t.
FED ERA L COMM UNICAT ION S COMM ISSION REORGANIZATION

withou t diminishing in any sub stantial way the parties’ rights to full and fa ir 

adm inistrative process.

I ll

(1) The Commission strongly endorses the provision in 1I.R. 7333 (sec. 2) 

giving the Commission autho rity to delegate in adjudicatory cases. Such provision is needed to permit the use of panels of Commissioners or employee 

boards to pass on cases other tha n those involving major policy or legal issues. 

Without this provision, it would still be necessary for Commissioners to hear 

such cases as fishing boat suspensions or routine aural broadcast matters. With 

it, the Commission will be able to concentrate on the important case, and the 

hearing of all cases by some autho rity within the agency should be su bstantially 

expedited. We would not expect the provision fo r discretionary reveiw of a delegated decision to add a new fac tor of delay, since we would hope that, for the 

most part, such decisions made in these routine cases would be correct and thus 

the application could be quickly acted upon.

(2) We do, however, disagree with several aspects of section 2 of the bill:

(i) The section provides th at any delegation rule or orde r may be rescinded 

by a vote of a majority, less one. We thin k this provision is unnecessary. 

First, it is apparently based on the fact th at review under II.R. 7333 is discretionary, and therefo re should be controlled by a “rule of three” comparable 

to the Supreme C ourt’s “rule of f our” with respect to the discretionary certio rari 

review: thus, if our suggestion is adopted th at review be afforded as ma tter 

of right, the provision is no longer needed. More important, experience does 

not support its inclusion. The Commission has long had complete discretion 

to delegate all nonadju dica tory ma tters and in fact has made extensive delegations. These delegation activities have worked well—and with out any indication of partis an abuse—under the present provisions of 5(d )( 1), which do 

not contain any “rule of three.”

(ii) The section provides th at the requirements of parag rap hs (a ), (b), 

(c ), and (d) of section 4 of the Adm inistrative Procedure Act shall apply 

in the case of any delegation rule. This provision is somew hat ambiguous 

(since 4( a) exempts rules of agency organizatio n, procedure, or practice, except 

where notice is requ ired by statute, and sec. 2 of the bill does not in terms 

require such notic e). But it presumably is meant to requ ire the Commission 

to give notice and an opportu nity for comment whenever it proposes to enter 

a delegation rule. Such a rule is a ma tter very largely within the judgment of 

the agency, which alone knows and can evaluate the demands upon its time and 

the capabilities of its staff. We have issued and revised many such delegation 

rules (see. e.g., 0.201-0.333, 47 CFR 0.201-0.333), alwa ys as an inte rnal matter, 

without notice or opportunity for comment. This does not mean that we 

would not employ the formal rulem aking procedures of 4 (a) and (b) in some 

futur e instance. But we strongly believe that the ma tter should be one with in 

the Commission’s dis cre tion: otherwise, revisions or extensions of the many 

present delegations will all have to go through the somewhat lengthy and, we 

think, in this respect, largely useless procedure of formal rulem aking. Significantly, interested parties such as the bar could alwa ys petition under 4(d) 

for amendment or repeal of any rule, including these delegation regulations.

(iii) In our view, the Commission would not be required, under 5(d) (3), 

to give reaso ns for denial of an application for review; this is our interp retation 

of the provision as it now a ppears in sim ilar languag e in section 5( d) (2). But 

an argu men t has been made th at under sections 6(d) and 8( a) of the Administrat ive Procedure Act and the last sentence of section 409(b) (retain ed in 

the bill as pa rt of 40 9( a) ), rulings on the merits of the application would be 

required. Since it is of critical importance th at the application for review 

may be denied (or granted) withou t assigning reasons therefor, we thin k 

the law should be explicit on this score. We would suggest the inclusion of a 

provision similar to 409(d) in appendix A or the revision of 409(a) in the bill 

to r ead as follow s:

“All decisions, including the initial decision, shall become a pa rt of the record 

and, except for decisions gra nting or denying an application for review under 

section 5(d )( 3), shall include a statem ent of (1) findings and conclusions, 

as well as the basis therefor, upon all material issues of fact, law, or discretion, 

presented on the rec ord; and (2) the appropria te decision, order, or requ irem ent.”

This revision, as complemented by the pre sent 40 9(d ), would remove all doubts.

(iv) We thin k the sta tut ory scheme should make clear th at an application 

for review is a condition precedent to judicia l review and th at no such applica71567—61----- 2
6 FED ERA L COMM UNICAT ION S COMM ISSION REO RGA NIZA TION

tio n m ay re ly up on que stio ns of fa ct or la w which th e des ig nat ed auth ori ty 

w ithin th e Co mm iss ion has been af fo rd ed no opport unity to pa ss . In th is way, 

th e ca se will be pre se nt ed to th e Co mm iss ion (a nd if th e ap plica tion is de nied , 

to th e court s) w ith a ru ling on ev er y issu e, and th e Com miss ion wi ll ha ve an 

op por tu ni ty to review th e de cis ion be fo re th e m att er goes be fo re th e co ur ts. 

In ap pe nd ix A, we ha ve se t ou t su ch a sch em e, an d ha ve re vi se d se ct ion 405 

to re tlec t it.

IV

Se cti on 2 of th e bill also pr ov id es fo r th e tr an sfe r of as si gnm en t fu nc tion s 

(e xc lu di ng as si gn m en t of co m m ission er s) fr om th e Com miss ion to th e chair ­

man. We do no t believe an y re vi sion of exis ting law is ne eded to th is resp ec t. 

The Co mm iss ion has alr eady de le ga te d to th e chai rm an a g re at dea l of au th o rit y in th is are a an d un do ub tedl y wou ld de le ga te fu rth e r au th o ri ty to assign 

pe rs on ne l to h ear adju dic ato ry ca ses, sh ou ld II .It. 7333 bec ome th e law . For 

th e chai rm an is th e ag en cy ’s ch ief ex ec ut iv e officer, w ith th e dut y “g en er al ly 

to co or di na te and or ga ni ze th e wor k of th e Co mm iss ion in su ch m an ner as to 

pr om ot e pr om pt an d efficient di sp osi tion of al l m att ers w ithi n th e ju ri sd ic tion of 

th e Co mmiss ion” (s ec tio n 5 ( a ) ) . B ut th e Co mm iss ion fe el s th a t su ch as sign ­

m en t au th o ri ty shou ld stem fr om th e Co mm iss ion an d no t th e s ta tu te : In th is 

way a fu tu re ch ai rm an will be bo un d to act fa ir ly in hi s as sign m en ts. W hile 

it is tr u e th a t oth er ch ec ks on ab us e o f su ch auth ori ty wo uld exis t (suc h as 

resc ission of th e de le ga tio n an d co nsi de ra tion of th e m att er by th e fu ll Comm is si on ), su ch ch ec ks are mor e cu mbe rsom e an d do no t, we th in k, carr y th e 

sa m e psyc ho logica l weigh t. This, in eff ect is, th e w ay se ve ra l of th e Fed er al 

co urt s of ap pe al s o pera te : U nd er a ge ne ra l pr ov ision re quir in g th a t as sign ­

men ts are to be mad e as th e court dir ects (28 U.S.C. 46) , se ve ra l ci rc uit s ha ve 

de lega ted to th e ch ie f ju dge th e au th o ri ty to as sign th e ju dges to th e pa ne ls. 

In sh or t, we ag re e w ith th e ob ject ive of th is pr ov ision bu t th in k it ca n be mo re 

wise ly ac co mplishe d by age nc y, ra th e r th an st atu to ry , ac tio n.

Appe n d ix A— FC C P ropos al

A B IL L To am en d th e Com m un icatio ns A ct of 193 4, as am en de d, in ord er to ex pe dite 

an d im prov e th e ad m in is tr ati ve pr oc es s by au th ori zi ng th e F ed er al Com mun ications 

Co mm iss ion to de lega te fu nct io ns in adju dic ato rj ' cases, re pea ling th e review staf f pr ovision s, an d re vi sing re la te d pr ov isio ns

He it enacted by the Senate and House of Representatives of the United

S ta te s of Am er ica in Co ng ress assembled , T h at su bs ec tio n (c ) of section 5 of 

th e Com m un icat io ns Ac t of 1934, as am en de d, is he re by repe al ed .

Se ction 2. Su bs ec tio n (d ) of se ction 5 of th e Com m un ications Ac t of 1934, 

as am en de d, is am en de d to re ad as f o ll o w s:

(1) W he n ne ce ss ar y to th e pro per fu nc tion in g of th e Co mm iss ion an d th e 

pr om pt an d or de rl y co nd uc t of it s bu sine ss, th e Co mmiss ion may, by ru le or 

or de r, de le gat e an y of it s fu nc tions to a pa ne l of co mmissio ne rs, an indi vi du al 

co mmiss ione r, an em plo yee bo ar d, or an in di vid ual em plo yee, in cl ud in g fu nc ­

tions w ith re sp ec t to he ar in g, det er m in in g, or de ring , ce rtif yin g, re po rtin g, or 

oth er w is e ac ting as to any work, bu sine ss or m att er, an d m ay a t an y tim e 

am en d, mod ify , or re sc in d an y su ch ru le or or de r. N ot hi ng in th is su bs ec tio n 

sh al l mod ify th e pr ov isions of se ct ion 7 (a ) of th e A dm in is tr ati ve Pro ce du re 

Act.

(2 ) An y or de r, de cis ion, or re port mad e or oth er ac tion ta ken , p urs uant to 

an y su ch de lega tio n, un le ss review ed as pr ov id ed in su bs ec tio n (3 ), sh al l ha ve 

th e sa m e fo rc e an d eff ect, an d sh al l be mad e, ev iden ce d an d en fo rc ed in th e 

sa m e m an ne r, as or de rs , de cis ions , re port s, or oth er ac tion s of th e Co mm ission .

(3) An y pe rson ag gr ie ve d by an y such or de r, decis ion or re port may tile an 

appl ic at io n fo r review by th e Co mm iss ion w ithin such tim e an d in su ch m an ­

ner as th e Co mm ission sh al l pr es cr ib e. Th e Co mm iss ion sh al l ha ve auth ori ty 

on it s ow n in it ia ti ve to ord er an y m att ers de lega ted under su bs ec tio n (1 ) befo re it fo r review on su ch co nd itio ns a s i t sh al l pr es cr ib e an d sh al l mak e such or ­

de rs t her ei n, co ns iste nt w ith la w. as s hal l be ap pro pri at e.

(4) In pa ss in g upon ap plica tions fo r review , th e Co mm iss ion may g ra n t in 

who le or in part , or de ny su ch ap plica tions w ithout sp ec ifying an y re as on s 

th er ef or. No such ap pl ic at io n fo r re vi ew sh al l re ly on qu es tion s of fa ct or law 

up on w hi ch th e in di vid ual co mmiss ione r, pa nel of co mmiss ione rs, em plo yee 

bo ar d, or in di vi dua l em plo yee, h as be en af fo rded no opport unity to pa ss.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 7

(5 ) If th e Com miss ion g ra n ts th e ap plica tion fo r review , it m ay affirm , mod ify , or se t as id e th e or de r, de cis ion, or re port mad e, or oth er ac tion ta ken in 

ac co rd an ce w ith s ec tio n 405.

(0 ) The til ing of an appl ic at io n fo r review sh al l be a co nd iti on pre ce den t to 

ju dic ia l review of an y or de r, de cis ion , or re port m ad e or oth er ac tion ta ken . 

The tim e w ithi n w hi ch a pet itio n fo r re vi ew m ust be tiled in a pr oc ee di ng to 

whi ch section 402(a ) ap pl ie s or w ithin which an ap pea l m us t be ta ken under 

se ct io n 402(b ), sh all be co mpu ted fr om th e d ate up on whi ch pu blic no tice is 

give n of or der s di sp os ing of all ap plica tions *or re vi ew or ex ce pt io ns til ed in 

an y cas e.

(7 ) The S ecr et ar y an d se al of th e Co mmiss ion sh al l be th e se cre ta ry an d se al 

of ea ch pa ne l of th e Co mm iss ion, ea ch in div id ual co mmission er, an d ea ch em ­

ploy ee bo ar d or in div id ual em ploy ee ex er ci sing fu nct io ns de le ga te d p u rs u an t to 

su bs ec tio n (1 ) of t h is s ec tio n.

Se ction 3. Se ction 405 of th e Com m un icat io ns Act of 1934, as am en de d, is 

he re by a men de d to r ead as f o ll o w s:

A fter a de cis ion, or de r, or re quir em en t has be en m ad e in an y pr oc ee di ng by 

th e Co mmiss ion or des ig nat ed au th o ri ty w ithin th e Co mm iss ion uuder se ct ion 

5 ( d ) ( 1 ) , an y p art y th er et o, or an y oth er pe rs on ag gr ie ve d or wh ose in te re st s 

are ad ve rs el y af fe cted th er eb y, m ay pet itio n fo r re heari ng on ly to th e au th o ri ty 

m ak in g th e de cis ion, or de r, or re q u ir em en t; an d it sh al l be law fu l fo r su ch a u ­

th ori ty , w het her it be th e Co mmiss ion or oth er au th o ri ty des ig na te d under se ction 5 ( d ) ( 1 ) , in it s di sc re tion , to g ra n t su ch a re heari ng if suffi cie nt re as on 

th ere fo r be mad e to ap pe ar . P eti ti ons fo r re heari ng m us t be filed w ithin th ir ty 

day s from th e d ate up on which pu blic no tic e is give n of an y de cis ion, or de r, 

or re qu irem en t co mplaine d of. No su ch ap pl ic at io n sh al l ex cu se any pe rs on 

fr om co mplying w ith or ob ey ing an y decis ion , or de r, or re quir em en t of th e Co mmission , or op er at e in an y m anner to st ay or po stpo ne th e en fo rc em en t th er eo f, 

w ithout th e sp ec ial or der of th e Co mm ission . T he fil ing of a pet itio n fo r re ­

heari ng sh al l no t be a co nd iti on pre ce de nt to ju dic ia l review of an y su ch de cisio n, or de r, or re qu irem en t, ex ce pt w her e th e p art y se ek in g such re vi ew (1 ) 

w as no t a part y to th e pr oc ee di ng s re su ltin g in su ch de cis ion, or de r, o r re quir emen t, or (2 ) re lies on que stio ns of fa ct or law up on w hi ch th e Co mm iss ion , o r 

des ig na te d au th o ri ty w ithin th e Co mm iss ion , has been af fo rd ed no opport unity 

to pa ss. Th e Co mm ission , or des ig na te d au th o ri ty w ithin th e Co mm iss ion , sh al l 

en te r an or de r, w ith a co nc ise st ate m ent of th e re as on s th er ef or, de ny ing a p eti ­

tion fo r re heari ng or g ra nti ng su ch pe tition , in who le or in p art , an d ord er in g 

su ch fu rt h e r pr oc ee di ng s as m ay be ap p ro p ri ate : Pro vide d, T h at in an y ca se 

w her e such pe tition re la te s to an in st ru m ent of auth ori zati on gra nte d w it hout 

a he ar in g, th e Co mm iss ion sh al l ta ke such ac tion w ithin ni net y da ys of th e 

filing of su ch pe tition . R eh ea ri ng s sh al l be go ve rn ed by su ch ge ne ra l ru le s as 

th e Co mm iss ion m ay es ta bl is h.

The tim e w ithin whi ch a pet itio n fo r revi ew m ust be filed in a pr oc ee di ng 

to which section 402(a ) ap plies, or w ithin which an ap pe al m us t be ta ken under 

se ction 402(b ), sh al l be co mpu ted from th e dat e up on which p ub lic not ic e is given 

of ord er s di sp os ing of all pet it io ns fo r re heari ng filed w ith th e Co mmiss ion in 

an y case, but an y de cis ion, or de r, or re quir em en t m ad e a ft e r su ch re hea ri ng, 

re ve rs in g, ch an ging , or m od ifyi ng th e or ig in al ord er sh al l be su bj ec t to th e sa m e 

pr ov isio ns w ith re sp ec t to r eheari ng a s an or ig in al o rd er .

Se cti on 4. Se cti on 409 (a ), (b ), (c ), an d (d ) of th e Com m un ications Act of 

1934, as amen de d, i s am en de d to re ad a s fo ll ow s:

(a ) In ev ery ca se of adju dic ati on (a s defined in th e A dm in is tr at iv e Pro ce ­

dure Act) wh ich has been des ig na te d fo r heari ng by th e Co mm ission , th e h earin g sh al l be co nd uc ted in ac co rd an ce w ith th e pr ovi si ons of th e A dm in is tr at iv e 

Pro ce du re Ac t an d su ch oth er ru le s as th e Co mmiss ion m ay p re sc ribe no t in co nsi st en t th er ew ith.

(b ) In such ca se s an y p a rt y to th e pr oc ee di ng sh al l be per m itte d to file ex ­

ce pt io ns an d m em or an da in su pport th er eo f to su ch in itia l, te nta tive, or reco mmen de d de cis ion , which sh al l be pa ss ed upon by th e Co mm iss ion or t he au th o ri ty 

to wh om th e m att er m ay hav e been de lega ted under section 5 (d ) (1 ).

(c ) In an y ca se of adju dic ati on (a s defin ed in th e A dm in is tr at iv e Pro ce dure 

Act) which has been des ig nat ed fo r hea ri ng by th e Co mm ission , no pe rs on ex ­

ce pt to th e exte nt re qu ir ed fo r th e di sp os itio n of ex p a rt e m att ers as au th o rized by law . sh al l dir ec tly or in dir ec tly m ak e an y pre se nta ti on re sp ec ting such 

ca se to th e he ar in g officer, mi les s up on no tic e an d opport unity fo r al l i»artie s to 

p a rt ic ip a te ; pr ov id ed th a t a Com mission er co nd uc ting th e heari ng sh al l be
8 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

pe rm itte d to co ns ul t w ith his ass is ta n ts an d to par ti ci pat e, w ithout re st ri ct io n 

be ca use of hi s co nd uc t of th e he ar in g, w ith th e Co mm iss ion upon review of 

th e ca se or an y oth er m a tte r; pr ov id in g fu rth e r th a t ex am in er s sh al l be perm itte d to co nsu lt w ith oth er ex am in er s on qu es tion s of law. No pe rson ex ­

ce pt to th e exte nt re qui re d fo r th e di sp os itio n of ex p art e m att ers as au th o rized by law , an d ex ce pt fo r officers, em plo yees, or ag en ts of th e Co mm iss ion no t 

en ga ge d in th e pe rf or m an ce of in ves tiga tive or pr os ec ut in g fu nct io ns fo r th e 

Co mm ission in su ch ca se or a fa ctu all y re la te d case, sh al l dir ec tly or in dir ec tly 

mak e an y pre se nta ti on resp ec tin g su ch ca se to th e Co mm iss ion or de sign at ed 

au th ori ty w ithin th e Co mm ission , un less up on no tic e an d opport unity fo r al l 

part ie s to par ti cip ate .

(d ) To th e exte nt th a t th e fore go ing pr ov isio ns of th is section an d section 

5 (d ) (4 ) are in co nflic t w ith th e pr ov isio ns of th e A dm in is tr at iv e Pro ce dure Act, 

such pr ov isions of th is se ction an d se ction 5 (d ) (4 ) sh al l he he ld to su pe rs ed e 

an d mod ify t he p ro vi sion s of th e Ac t.

Secti on 5. N ot w ithst an din g th e fo re go ing pr ov isio ns of Ib is Act, th e sec ond 

senten ce of su bs ec tio n ( b) of section 409 of th e Com m un ications Ac t of 1934 

(w hich re la te s to th e tiling of ex ce pt ions an d th e pre se nta ti on of ora l arg um ent) , as in fo rc e a t th e tim e of th e en ac tm en t of th is Act, sh al l co nt in ue to 

be ap plic ab le w ith re sp ec t to an y ca se of ad ju dic at io n (a s defin ed in th e Ad ­

m in is tr at iv e Pro ce du re Ac t) se t fo r heari ng by th e Fed er al Com mun ications 

Co mm ission by a no tic e of hea ri ng iss ue d pri or to th e date of th e en ac tm en t of 

th is Act.

The Chairman. I want to say a t the outset that I am well aware 

of the great interest in this matter. It is my hope, because of the 

deep interest tha t we have and perhaps the controversies that have 

arisen in the minds of a lot of people, th at we will not lose sight of 

the fact that there is much room for improvement yet in administrative procedures and that we will not let our prejudices about the very 

fact that a reorganization plan has been submitted or, that there are 

different proposals relating to various agencies, many of which have 

the same objective and certainly the intention of reaching the same 

result, that these things will not overcome our better judgment toward 

working out the kind of legislative procedures that will be helpful.

1 have no special or pa rticular interest in the bill tha t I introduced. 

That was a result of the promise t hat I made to the Committee on 

Government Operations when I was before it regarding the reorganization proposal. I have had some discussion with a good many other 

people about it.

In many respects those of us who tried to approach the question 

have approached it identically, but in two or three respects there are 

some sharp differences. I th ink those could be very easily and readily 

worked out if we will all join together and put in our best efforts 

toward a final objective tha t will help the Commission.

I do not claim to have any special intuition or otherwise in connection with the FCC, any more so than the other regulatory agencies. 

I want to say that I am very well pleased, however, at the progress 

that has been made within these various regulatory agencies themselves, by some of the things that the Congress has accomplished, and 

by what I see now is on the way to fruition. I am very well pleased 

and I think I could speak for the entire committee when I say that 

we are very well pleased by the way these agencies are conducting 

their business and carrying on the business of the public. And with 

these improved procedures, if we will just not let prejudices get in 

and not let ourselves be persuaded by who is tryin g to do what, but 

everyone work toward the same objective, I think we will come out 

a lot better in the end.
FEDERAL COMM UNICAT ION S COM MIS SIO N REORG ANIZATION 9

1 know the Commission is here with us today. I believe I observe 

all the members. I appreciate the fact tha t you are here. I know 

of your concern in this program and I believe tha t with all heads of 

the members of the Commission, putting your brains and minds to 

work, working together with members of this committee, and with 

those who are equally interested in cooperating, as well as the practitioners who are here in the District of Columbia, and perhaps 

others, and the industry recognizing a need and helping us work it 

out, we will come out with something tha t will be very, very helpful 

to the future of this program.

As I say, I hold no pa rticular brief for the bill as I introduced it. 

I have said tha t if the bill contained all the provisions of the reorganization plan, there are some provisions of it tha t I would change. 

But the overall objective is good and we all ought to recognize that. 

I do not believe in being against a proposal just to be against 

something.

I know it is difficult to arrive at a solution to these problems even 

though we have gone through a lot of misery and pain and difficulty 

dealing with them over the years. It is easy to get in the midst of 

developing something where the dramatic headlines are facing you, 

but it is awfully difficult to carry through and bring about the needed 

changes, and we are right now at that particular point.

To my way of thinking, we have enough initiative, the brains, and 

foresight to all get together to do what should be done in the best 

interest of the people. That is who we are working for.

If the bill does not accomplish the purpose as I have analyzed it 

along with the bill as proposed by the Commission, we must seek some 

other solution. The way I see it, there is only one major difference 

between the two, regardless of the difference in the language. I think 

tha t the major difference can be resolved. In the hearings, it is my 

hope that these things can be adequately resolved, taking into consideration the views expressed by the members of the Commission who 

are going to have to deal with these problems in the future.

Finally, I have one other thing in mind. I was a member of this 

committee when the McFarland amendments were reported in 1950 

and 1951. I had a great deal to do with those amendments and I have 

felt during these 10 years that had I not become interested in it at the 

time, because the Senators and some others had importuned me, it is 

very doubtful tha t that bill would have ever gotten out of this committee. I think in some respects th at those amendments went too far 

and I think they have in some ways been a burden to the Commission, 

and that these years of experience have taug ht me tha t if we have 

made a mistake in the past, even though it has been some time and we 

need to move cautiously and slowly, we ought to correct them and 

bring about some improvements in the way tha t our Government 

■works. To that extent, there are some things that we did then that I 

hope we will correct to some degree.

We are very glad to have back with us this morning Dean Landis, 

special assistant to the President of the United States. Dean, I understand that you have not been feeling too well the last few days, but 

we are glad you are able to be with us, and even though you did testify 

on the plan before the committee, we would be very glad to have your
10 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

expression of views and sug gestions with refere nce to this pro posal 

and pe rhaps the pro posal, which I th in k you mu st be fa m ili ar with, 

recommended by the Comm ission.

STATEMENT OF JAMES M. LANDIS, SPECIAL ASSISTANT TO THE 

PRESIDENT

Mr. L andis. Th an k you, Air. Ch airma n.

Air. Ch air man, I t hi nk t hat you hav e v ery righ tful ly describ ed this 

bill as being one designe d to ca rry out the prime objectives of Reorganiz ati on Pl an No. 2. Tho se objectives hav e been to br in g abo ut a 

more efficient dis patch of business before th e vario us reg ulatory age ncies and wi th rega rd to plan No. 2, the Fe de ral Com municatio ns 

Comm ission.

Th e prim e dri ve or th ru st of plan No. 2 was to pe rm it delega tion 

of matters th at should no t have require d the attention of the full 

Commission t o h earin g exa miner s to panels of Comm issioners, to Commissioners indiv idu all y, an d to board s of employees. If I may just 

tak e th is bill section by section and ind icate how those obje ctives are 

ca rried out in the bill with certa in eme nda tion s, whi ch I think have 

come as a resu lt of discussion before th is committee, I would like to 

do t ha t.

Section 1 of thi s bill which rep eals section 5(c) of the C ommunications Ac t re la tin g to the review staff, I think, needs very littl e commen t. I th in k there is gen eral un an im ity b oth in th is comm ittee and 

in the C omm ission itse lf th at th at section is no t too desirable.

I come to section 2, and section 2 provide s f or the typ e of de legatio n 

th at was envisag ed by plan No. 2 and adds certain safeg uards with 

refere nce to th at delega tion . Th e firs t safegu ard th at it add s is to 

make ex pli cit the concept o f rescission of an y rule deleg ati ng a matter 

by th e Commission. I t does more tha n th at .

I t mak es expli cit the con cept of bipa rti sa ns hip th at is prese nt 

throug ho ut our regu latory agen cies as a whole, and pro vid es th at a 

minority of the Commission can effectively rescind action th at has 

been tak en by a majo rit y. It is difficult to see a ny rea l ha rm in th at 

pro vision .

Th e importance of any rule of this na ture would be such th at it 

sho uld be app rov ed, ge neral ly s peaki ng, by the Commission as a whole, 

and if a substan tial minority , which would consist of a t lea st thr ee i n 

the case of the Fe de ral Comm unications Commission, feels th at th at 

kind of del ega tion is undesirable, pro bably the wise th in g to do is to 

rescind the rule, and section 2 of th is bill pro vid es f or tha t.

T hat section also mak es ex plicit wh at I th in k was im plicit in plan 

No. 2, nam ely, th at section 4 of the Ad minist rativ e Procedure Ac t 

wi th rega rd to publication and notice of rulem aking is applicab le to 

anv rule which is promu lga ted p ur su an t to th is section.

I th in k th at was im plici t in plan No. 2 and to make it exp licit is 

certa inly not unwise because th at will make it very, very clear th at 

the pro ced ure s of section 4 of the Adm inist rativ e Procedure Ac t 

ap ply to these pro ceeding s.

Par ag ra ph (3) of section 2 is pe rhap s the only rea l po in t upon 

which th ere is some divis ion of opinion. Th ere is no div isio n of opinion as th at pa ra gr ap h appli es t o the obje ctives of pl an No. 2. Tha t
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 11

para graph provides for the concept of discretionary review with the 

safeguards tha t are inherent in it, and the objection, as I understand 

from the result of earlier hearings before this committee, is a desire 

on the part of certain members of the Commission and also certain 

members of the Federal Communications Bar Association to have a 

mandatory administrative review inside the Commission.

Wha t worries me about tha t and why I think tha t the concept of 

discretionary review is a better concept is that it may tend to throw 

an additional piece of machinery into the disposition of business 

before the Commission. I should, not like to see tha t kind of thing 

happen.

unfo rtunately, that kind of procedure was characteristic of the I nterstate Commerce Commission for a while and did succeed in delaying proceedings before that Commission. The Interstate Commerce 

Commission is working itself out of t hat intermediate appellate p rocedure. The point I would like to make and the point that. I think 

is present in this bill, and also in plan No. 2, is that the petitions for 

review of decisions that have been delegated are handled by the Commission itself. That, to my mind, is a very important thing, because 

it will keep the Commission alive as to the current business tha t flows 

through it and not to have those things handled by the Commission 

itself would, I think, be an act of delegation tha t would exceed what 

is essential to enable this Commission to dispatch its business.

I can recall my own experience as a law' clerk to a Justice of the 

Supreme Court of the United States. The petitions for certiorari 

w’ere always handled personally by tha t Justice. It was a very important thing to him that he should handle petitions for certiorari 

because he then would have a concept of the flow of business through 

the inferior or lower courts of the Federal judicial system, as well as 

the State courts themselves. That the petitions fo r review’ be handled 

by the Commission itself, I think is a wise procedure. Certainly the 

burden of handl ing these petitions will be far less than the burden of 

handling mandatory review as it exists today under the Federal Communications Act.

Moving to para graph (4), the difference between paragraph (4) 

and plan 2 is tha t the assignment of Commission personnel under this 

w’ill be by minute of the Commission and not by action of the ch airman. It seems to me a difference tha t is not too significant and I 

should imagine that it can be handled tha t way. It is handled tha t 

way in some of the courts of appeals. I know it is handled tha t w’ay 

in the Court, of Appeals here in the District; tha t is, really by minute 

of the judges themselves, rath er than by action of the Chief Judge.

If the Commission wants to give this authority to the chairman it 

can give th at authority to him by minute itself, but naturally, it can 

withdraw th at authority if there is any abuse.

Turning to section 3, I think section 3 is very wise in abolishing 

section 409(a) of the Communications Act and rewriting it, because 

section 409(a) prohibits the assignment of an adjudicative matter to 

a single Commissioner, wdiich assignment is contemplated in the Administrative Procedure Act of 1946. To permit the Commission to 

act within the scope and contemplation of the Administrative Procedure Act seems to me a very wise thing to do.
12 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

I think I might add tha t section 3 generally handles matters that 

were not handled by plan No. 2 and goes furher to correct certain 

matters tha t swe deemed wise to correct in the Communications Act 

of 1954.

1 have a suggestion with regard to section 3. In para graph (b) of 

tha t section, in fact in line 4 of page 5, there is a prohibition against 

any hearing examiner discussing not merely questions of fact with 

anyone else of any matter that is before him, but also questions of 

law.

This is in the Communications Act at present. This is not new’ 

legislation. But it seems to me unwise to prohibit the discussion of 

questions of law by a hearing examiner, particularly with his colleagues. I would say it is true of the decisions of the Federal Communications Commission as w’ell as many other regulatory agencies 

that they are not too well indexed and very frequently, it may be 

true that a hearing examiner of long standing will remember a decision dealing with a point of law t hat a younger colleague of his will 

have difficulty in putting his lingers on.

It is not uncommon, and certainly not uncommon among judges 

who have not necessarily presided over the same case, to discuss questions of law’ with each other that have arisen, and I think that prohibition is not too wise. There is no reason why a question of law tha t 

arises in a particula r case cannot be batted up against somebody else 

to get. his opinion and his knowledge with regard to the law governing 

that particu lar issue.

Another suggestion that I make, with due deference, is w ith regard 

to p arag raph (c) of section 3. Paragraph (c) is a repetition of section 409 (c) (3). There again, it seems to me that injunctions that th at 

paragraph places both upon Commissioners, hearing examiners, and 

the like, is not too wise. It prevents a Commissioner actually from 

discussing the disposition of a case with his general counsel. The general counsel, if he has been active in a particular case, would be 

prohibited from discussing that case as a result of para graph (b) 

of section 3, and that is right, but if he has had nothing to do with 

the investigation or prosecution of the case it does not seem to me 

to be too wise for him to be prohibited from giving his advice to 

members of the Commission as to matters of law’. The elimination 

of subparagraph (c) would, I think, be wise and w ould constitute an 

improvement in the Communications Act.

I come back to one point as to which there is some difference. In 

paragraph (b) of section 3, that in substance is the same as section 

409 subparagraph (c) of the Communications Act of 1934 with one 

difference.

Section 409(c) places a prohibition upon the examiners discussing 

certain matters that are pending before them with other individuals. 

This goes further and places that injunction upon officers. I see no 

harm in that.

Tf a Commissioner or some other employee of the Commissioner is 

exercising the same functions as a hearing examiner exercises; namely. that of dealing with the pending case, the same prohibitions 

should attach to him as attach to the hearing examiner. These 

prohibitions are wise with regard to the hearing examiner. They 

seem to me just as wise, with regard to anybody who exercises that
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 13

function, and I think, if I may say so, this is an improvement of section 409(c) of the Communications Act.

I would particularly like to make one further observation which is 

a general observation. I think this act carries out a very important 

concept that is inherent in the Administrative Procedure Act, and th at 

is our system of hearing examiners. I cannot conceive of our administrative process not having this corps of hearing examiners. No 

regulatory agency can actually handle all the business that comes to 

it and it must delegate to what I have called nisi prius judges in the 

first place, to hear and determine the facts and to make an initial decision. It has been impo rtant in my mind and my thinking, for the last 

decade in fact, tha t this corps of hearing examiners should be built up. 

Perhaps one can be critical of certain aspects of tha t corps today, but 

I believe that it is essential that they should be built up, their prestige 

should be increased, and their responsibilities should be increased. 

This bill follows that theory.

If, for example, you would follow a concept of instituting an intermediate board over the hearing examiner, and not making him directly 

responsible to the Commission, I think his prestige would be reduced, 

and my own concept, and this is simply my thinking, is th at we should 

do everything tha t we can to build up these men who have the initial 

decision in their hands and who have to determine the credibility of 

witnesses tha t come before them. They are important and their stature 

should not be reduced. This bill does not do that. It follows, I think, 

the objectives of plan No. 2 in tha t respect, in encouraging them to 

take more and more responsibility with regard to the disposition of 

matters before them.

I thin k that is all I have to say at this moment, Mr. Chairman.

The Chairman. Dean, thank you very much for your statement 

analyzing the proposal. Have you had occasion to consider the proposal which the Commission has suggested itself ?

Mr. Landis. They have reference to tha t proposal. I think the 

chief point of difference between this bill and a bill tha t was introduced by Senator Pastore, which I understand is the Commission bill, 

is the retention of the mandatory right of review, somehow, inside the 

Commission. I th ink th at is the chief difference.

The Chairman. Yes; th at is one major difference between them, and 

then, of course, to a lesser extent the question of the Chairman’s power 

to make certain delegation of authority.

Outside of those two differences, I do not think there is much difference between the two bills.

Mr. Landis. No; that to my knowledge, is the significant difference. 

There is one other difference; namely, that the righ t to judicial review 

under the Pastore bill is circumscribed by requiring, as a condition 

precedent, that you exhaust the entire administrative review’ inside 

the Commission, whatever tha t administrative review may be. I do 

not see that that is objectionable. One can easily come to a conclusion 

tha t that exhaustion of administrative remedy might be spelled out 

because the courts might really insist on that and if you want to avoid 

any potential litigation along that line, it m ight be spelled out here in 

one of the paragraphs.

However, tha t again is certainly not a material matter.

The Chairman. Mr. Springer, any questions?

71567— 61-------3
14 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Springer. Dean Landis, as I understand it, through all of 

your investigations extending from last fall down to the culmination 

of this thing in reorganization plan No. 2, it was your feeling tha t 

one of the things tha t ought to be improved was the expedition of 

business. That has been one of your main criticisms of the FCC. 

Is that true?

Mr. Landis. That is right.

Mr. Springer. Do you feel that this bill, H.R. 7333, will do th at ?

Mr. Landis. I certainly do.

Mr. Springer. How do you feel t ha t this would expedite business 

over the present procedure ? Can you just spell off one, two, or three 

things?

Mr. L andis. I feel this way: that it will remove from the necessity 

of attention by the seven members of the Commission a series of matters tha t do not really deserve the a ttention of the full Commission, 

and in that way, it will allow them to spend more time on the things 

that are more important.

Mr. Springer. I s it your feeling presently that under this proposed 

bill it would be the delegation in an adjudicatory proceeding that 

would be speeded up ?

Mr. Landis. Prim arily, I think, in the adjudicatory matters. I 

think it will also speed up certain of the noncontested matters tha t 

the Commission has to dispose of.

Mr. Springer. I s that by virtue then of the assignment of personnel 

to perform delegated functions?

Mr. Landis. No; I would not say that. It would be by virtu e of 

giving a degree of finality to the act of delegation, which does not 

exist now.

Mr. Springer. I follow from that then tha t you mean by virtue of 

the fact that there would be no appeal ?

Mr. L andis. No mandatory right of appeal.

Mr. Springer. And one of your main contentions is that there 

should be no mandatory righ t of appeal ?

Mr. Landis. Tha t is right.

Mr. Springer. I take it then tha t is the reason you favor H.R. 7333 

over S. 2034 ?

Mr. Landis. That is right.

Mr. Springer. Are you familiar with S. 2034 ?

Mr. Landis. I have read it and studied it ; yes, sir.

Mr. Springer. Under that plan the Chairman could not assign 

either Commissioners or staff. Thus, all assignments would be made 

by the Commission; is that right?

Mr. Landis. Yes, sir.

Mr. Springer. Pardon us just a second. We want to be sure we 

are together up here on what the law is.

To clarify a matter, Dean Landis, when I was talking about an 

appeal, I was talking, under the language of the statute, about a 

rehearing, and that is what I termed an appeal.

Mr. L andis. I see.

Mr. Springer. I want to be sure it is your feeling th at there should 

not be any right of appeal on a rehearing.

Mr. Landis. Oh, a right to a rehearing is always present. There 

is no doubt about that.

Mr. Springer. Not mandatory ?
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 15

Mr. Landis. It is not mandatory under the law today. You have 

the right to file for rehearing, but the grantin g of rehearing is certainly not mandatory.

Mr. Springer. Did I understand you to say tha t presently the 

Chairman may assign the staff under present law ?

Mr. L andis. I think he has tha t right. I thin k you better ask tha t 

of members of the Commission. As I recall it, there is a minute of 

the Commission which authorizes him, generally, to do that, except 

with regard to people in charge of the divisions.

Air. Springer. It was my understanding tha t he did not have that 

at the present time.

Air. Landis. Aly und erstanding is a little different than that, but I 

may be wrong on that matter.

The Chairman. I think if the gentleman would permit, this whole 

matter ought to be cleared up somewhat. AVe have had a g reat deal 

of information about the authority, assignments, delegations, and 

functions, and so forth which came up in the course of the hearing a 

few days ago, b ut section 5(d) of the Communications Act does p rovide t hat—

Except as provided in section 409— 

section 409 has to do with adjudications—

the Commission may, when necessary to the proper functioning of the Commission and the prompt and orderly conduct of its business, by order assign or refer 

any portion of its work, business, or functions to an individual Commissioner or 

to a board composed of one or more employees of the Commission to be designated by such order for action thereon, and may a t any time amend, modify, or 

rescind any such order of assignment or reference.

That. is the section which refers, insofar as the Federal Communications Act is concerned, to the authority of the Commission with 

reference to the assignment of the staff personnel, and so forth only 

in nonadjudicatory matters.

Mr. Borc hardt calls our attention to the fact, Dean, tha t there is 

some misunderstanding about some of the explanations th at have been 

given here with reference to some of the provisions of the act. I 

think it might be helpful if, as soon as memoers of the committee can 

conclude what questions we have of you, we get the Chairman of the 

Commission and his colleagues here with him, since they wrote the 

bill, and let them explain what it would propose to do.

I believe that would be a pretty good thing to do and not further 

get the record cluttered up here with a lot of information that is not 

in accordance with what is proposed and what the facts are.

Air. Si •ringer. In essence, Air. Cha irman, I take it, they can assign 

if the Commission so sees fit in nonadjudicatory matters. In adju dicatory proceedings they cannot.

The Chairman. That is true, and under the procedure of the Commisson, in certain matters the Commission has delegated certain 

authority to the Chairman to carry out.

Air. Springer. That is nonadjudicatory matters?

The Chairman. Yes.

Air. Springer. I would like to go on to the second point. This 

refers, Dean Landis, to delegations in adjudicatory proceedings. H.IL 

7333 provides for delegation tha t would require a majority of the 

Commissioners then holding office. This delegation could be revoked
16 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

by three Commissioners. Tha t is in essence and substance what tha t 

section refers to.

Now, the question is what difference is there between the provisions 

in II.R. 7333 on this matter and Reorganization Plan No. 2?

Mr. L andis. The difference is tha t in Reorganization Plan No. 2 

if a petition for review was filed in a matter that had been delegated, 

a minority could require a hearing en banc by the Commission. Here, 

however, the very rule tha t authorizes the delegation can be revoked 

by that same minority.

Mr. Springer. I thought tha t under Reorganization Plan No. 2 tha t 

could be revoked by a minority of the Commission.

Mr. Landis. No, it could not be.

Mr. Springer. Senate 2034 on rehearing would make no change in 

the present law : is that correct ?

Mr. Landis. I think it makes a slight change with regard to section 

405 of the Communications Act.

Mr. Springer. Would you develop that, please, if there is a change ?

Mr. Landis. I am a fraid I cannot. I thought tha t it perhaps did, 

but I do not believe it does.

Mr. Springer. Dean Landis, as to the restrictions on the staff in adjudicatory proceedings, II.R. 7333 eliminates restrictions going beyond 

the Administrative Procedure Act on Commission consulting with 

legal, engineering, and accounting staffs; is that right ?

Mr. Landis. Tha t is right,

Mr. Springer. How does tha t differ from Reorganization Plan 

No. 2?

Mr. L andis. Reorganization Plan No. 2 never touched th at question 

at all.

Mr. Springer. It did not touch question at all ?

Mr. L andis. It did not touch th at question. May I say with regard 

to your earlier question, Mr. Springer, on rehearing, there is possibly 

this slight difference; namely, th at if you apply for a rehearing under 

this bill, the application is made to the authority th at made the decision. It is not necessarily made to the Commission as a whole. It is 

made to the authority tha t made the decision. I think tha t is the 

possible difference.

Mr. Springer. As to the discretionary review by the full Commission, you would have under this bill a certiorari procedure in lieu of 

mandatory review ?

Mr. Landis. That is right.

Mr. Springer. Is there any change in tha t provision from Reorganization Plan No. 2 ?

Mr. Landis. I do not think so. I thin k, in substance, it is the same, 

I have not checked every word, but I think in substance, it is the same.

Mr. Springer. That is all, Mr. Chairman.

The Chairman. Mr. Rogers.

Air. Rogers of Florida. No questions.

The Chairman. Mr. Younger.

Mr. Younger. Dean Landis, do I understand that II.R. 7333 is satisfactory to you ?

Mr. Landis. To me personally, yes.

Mr. Younger. If such legislation were proposed in regard to your 

other reorganization plans, would it be satisfactory to you?
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 17

Mr. L andis. I would have difficulty in saying tha t because this p articu lar bill has been very, very carefully drawn and it has been drawn 

in the lig ht of objections tha t have been advanced by members of the 

Federal Communications Commission, whereas in the other cases, 

there have practically been no objections at all, and I think you have to 

understand tha t the Federal Communications Act is distinguished 

from the basic acts for the SEC, and the National Labor Relations 

Board and other agencies. The Federal Communications Act is much 

more detailed with regard to its procedural requirements, and therefore, the problem is a different one.

Mr. A ounger. I)o you not think tha t a bill could be drawn just as 

carefully in connection with the other regulatory agencies as this has 

been drawn in connection iwth the Federal Communications Commission ?

Mr. Landis. It seems to me immaterial as to whether you operate 

throu gh a plan or through legislation if the plan is a satisfactory one, 

and is not subject to objection.

Mr. A ounger. I think there is quite a bit of difference as to whether 

or not it should be done by legislative act rather than by Executive 

order.

Mr. Landis. A reorganization plan is not an Executive order. A 

reorganization plan is law, if it is not disapproved by either House of 

the Congress. An Executive order is issued-----

Mr. Younger. It originates there.

Mr. Landis. It originates there, tha t is true.

Mr. Younger. That is all, Mr. Chairman.

The Chairman. Mr. Hemphill.

Mr. Hemphill. Thank you, Mr. Chairman.

When you propose the elimination of mandatory review all across 

the board, is there danger of neglecting some areas where mandatory 

review ought to be had ?

Mr. Landis. There could be danger of that. I should think tha t 

you would have to place a considerable degree of confidence in the 

Commission as to what areas it would use this power of delegation.

Mr. Hemphill. Aly question does not arise from the lack of confidence in this Commission, but the thought occurred to me tha t if 

there is some extreme penalty or denial such as with respect to free 

licensing or something of that nature, within the scope of this Commission's authority, once the order of extreme penalty or denial is 

published, and it would be published, then the effect on that particular installation to continue its business and make a profit for its investors is seriously encumbered, i f not actually jeopardized entirely, 

so, looking a t the industry, which is still a part of the private enterprise system of America, and which I still believe in, I do not want 

us to write anything into the law with such strict provisions tha t the 

industry itself under those strict provisions has no right of mandatory 

review, regardless of the seriousness of the question.

I would certainly like to have your thinkin g on that.

Mr. Landis. I would say this: that it has the righ t to petition for 

review and I should think in any important case where there were 

issues of controverted factor, where there was a new question of law 

involved, tha t there would be no hesitation to grant the review so 

tha t the case would be heard by the Commission en banc.
18 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

I think there is tha t safeguard. There is the further safeguard that 

if the Commission itself is arbitrary in denying petition for review, 

judicial review is available.

Mr. Hemphill. Tha t poses my next question.

Is it your opinion that the righ t to gra ntin g certiorari by a minority 

of the Commission gives a protection in lieu of the mandatory review 

that was supplanted ?

Mr. L andis. I think so. I think that safeguard is written in here 

and I should think that in any case where one or two Commissioners 

felt strongly about the situation, the Commission would grant hearing 

en banc. That would be customary.

Mr. Hemphill. At the same time, would you recommend that, when 

tha t petition for certiorari is granted or approved or is w ritten into 

the law, automatically there is a stay of execution until tha t proceeding 

is reviewed ?

Mr. L andis. That is in the discretion of the Commission.

Air. Hemphill. If it is of such a serious nature tha t the required 

number of Commissioners granted a certiorari, should there not be 

a stay of the proceeding at that point to protect the industry in the 

event a mistake had been made in the lower hearing decision ?

Air. L andis. Normally, I would say that would be the answer, that 

a stay would be granted under those circumstances. There might be 

situations where really the public interest was so much at stake that 

you would deny a stay, but in the normal case, thinking of the business 

tha t is before the Commission, the stay would be, I should think, normal procedure that would be adopted.

Air. Hemphill. One more question, sir.

You stated, as I understand it, tha t the judicial review would come 

into the picture afte r remedies had been exhausted which this bill 

would provide before the hearing examiner, then by petition for 

certiorari, if denied, before the Commission, and then he could go 

into the courts. If we do not write into the law some provision for 

stay, then the delay of getting into the courts in the event of an 

adverse decision within the prescribed procedures before the Commission, is going to cause such a delay, if the execution is carried out, 

tha t you are going to wipe out somebody’s business. Is tha t a possibility in your opinion?

Mr. Landis. There is a possibility of tha t nature. Of course, the 

grant of a stay with regard to an ultimate Commission order if you 

appeal to a court, is in the discretion of the court today. Of course, 

even the Commission may grant a stay, too, but it is a matter of discretion there with the Commission. I am not worried by tha t phase 

of it, I must say, Air. Hemphill.

Air. H emphill. Suppose we had a revocation of the right to broadcast for a certain number of days or a certain period of time. I am 

thinking about the peculiarities of the industry with which I have 

tried to familiarize myself, of course, being on this committee. Of 

course, if you have an order which to me is as extreme as this and 

he has to suspend with just no stay, then you just, in effect, put him 

out of business almost because his advertisers are going to say we
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 19

cannot depend on him if he is in jeopardy with the Federal Communications Commission. The people who are listening are going to 

say there has been an interruption. We will channel our usual listening devices to another station, or some other show tha t we can see; 

and that I think is the impact tha t the industry itself presently fears 

from this partic ular legislation.

I hate to ask you so many questions, but I would like you to comment on that.

Mr. Landis. I do not see how this bill affects th at situation, if I 

may say so.

Mr. Hemphill. Supposing we have a relicensing. A hearing examiner makes the decision tha t he is not going to relicense them. The 

station or the network, if a network, would be involved, would petition immediately for certiorari, but the order of the hearing examiner, 

as I understand it, would be a public record which the competitors 

would carry such to the newspapers, and most of them would be quick 

to pick it up in competition. Then what protection does the industry 

have in such a situation under the provisions of this bill ?

Mr. Landis. You see, if you have a hearing before the hearing 

before the hearing examiner in a situation of tha t nature, then there 

is a petition for review filed. I think you do not have a final order 

of the Commission until that petition for review is denied or granted, 

and some other order of the Commission entered.

Mr. Hemphill. Then, you think there is an automatic stay of 

execution ?

Mr. Landis. Yes, I think when you file the petition for review, 

you are asking, really, for a final order of the Commission, and you 

do not have a final order until the Commission acts. If no petition 

is filed within the time limit, then, of course, the decision below becomes the final order of the Commission.

Mr. Hemphill. Thank you very much, sir.

The Chairman. Anything further, Mr. Hemphill ?

Mr. Hemphill. No, thank you.

The Chairman. Mr. Thomson.

Mr. T homson. No questions.

The Chairman. Mr. Moss, do you have any questions?

Mr. Moss. No questions.

The Chairman. Thank you very much. Dean Landis.

Mr. L andis. Mr. Chairman, may I make one small further suggestion with regard to paragraph (4) of section 2 relating to the assignment of personnel by the chairman ?

Obviously, that section should not apply to what might be called 

the staff members of the individual Commissioners. Tha t ought to be 

under the control of the individual Commissioners, and a small amendment Avoidd cure any inference that the chairman had any power to 

deal with those individuals.

Thank you very much.

The Chairman. Thank you, Dean.

Mr. L andis. Thank you.

The Chairman. Mr. Minow.
20 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

STA TEM ENT OF HON. NEW TON N. MINOW, CHAIR MAN, FEDERA L 

COMMUNICATIONS COMMISSION, ACCOMPANIED BY MAX D. 

PAG LIN , GEN ERAL COUNSEL; AND HE NR Y GEL LER , ASSOCIATE 

GENERAL COUNSEL

Mr. Minow. Mr. Chairman and members of the committee, I appear today to present the views of the Federal Communications Commission regarding LI.R. 7333, which has the purpose of facilitating the 

prompt and orderly conduct of the Commission's business.

The views which follow can be said to be “consensus” views. By 

tha t I mean th at the Commissioners, as a matter of individual preference, adhere to the positions which they took on Reorganization Plan 

No. 2 of 19G1, which as you know, is similar in many respects to H.R. 

7333. But they have unanimously agreed on the submission of these 

views and the report which was transm itted to the committee, in order 

to give the committee the benefit of their combined or “consensus” 

judgment. The same consideration applies to the “consensus” bill attached to the report.

Since the report will, I trust, be made a part of the record, I will 

not go over in detail all the points which appear in it. Instead, I will 

try to present here what I thin k are the highlights.

The Chairman. I think a t this time, it m ight be well to have a copy 

of the bill, H.R. 7333 and your report, together with your own pro ­

posed bill included in the record at the appropria te place at the beginning of the hearing.

Mr. Minow. Thank you, Mr. Chairman.

Mr. Springer. May 1 ask, is your bill appendix A ?

Mr. Minow. Yes. Tha t is the. bill introduced by Senator Pastore. 

The Commission prepared it at his request as a result of our hearing 

over at the Senate side.

Mr. Ppringer. Your bill is Senator Pastore’s bill?

Mr. Minow. Yes. I think it would be helpful to the committee if 

I explained. When we were before the Senate Commerce Committee 

on the reorganization plan, Senator Pastore asked us if we could get 

together on a suggested piece of legislation. Tha t is what we did, and 

tha t is the attachment to our report.

Mr. Springer. Was tha t unanimous?

Mr. Minow. Yes. As I say, in the interest of unanimity, we have 

all agreed to it, but I think each of us would have individual preferences. However, it is fai r to state tha t it is the consensus of our 

collective views.

Mr. Springer. Thank you.

Mr. Minow. First, we wholeheartedly support the objectives of the 

bill. The Commission clearly needs more flexibility on procedural 

matters. At the present time, all seven Commissioners must hear 

oral argument in every adjudicatory case. This means tha t the Commissioners’ time is preempted by such questions as the revocation of 

a fishing boat ship station license or the most routine oral broadcast 

matters.

And, the oral argument is just the part of the iceberg above the 

water. It takes much more time to study the issues, decide the case, 

and review the decision prepared. Let me expand on tha t for a 

moment. The Commission is designed to be a deliberative body.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 21

That is its strength and its experience. But tha t strength becomes a 

weakness when the full Commission is required to take up every 

routine matter. For, the Commission cannot cease being a deliberative body, just because the matter is routine. As a consequence, we 

tend to spend almost as much time on such routine matters as we 

do on the much more important issues coming before us.

H.R. 7333 would change that. The proscription against delegating 

in adjudicatory cases would be eliminated, and the Commission would 

be able to delegate review of such cases to panels of Commissioners 

or employee boards. Applications for review of the decisions of the 

panel or board could be denied by the Commission without giving 

reasons.

We heartily endorse this statutory scheme. It would expedite the 

decisional process and thus cut down on the administrative lag. 

Equally important, it would permit us to concentrate on major matters of policy and planning.

Let me emphasize that last point. We are not going to delegate 

the development of policy or major legal doctrines to an employee 

board or even a panel of Commissioners. We have not done so in 

the rulemaking field, where we have long had power to delegate, and 

we will not do so with any new authority given us.

But we must be free to concentrate on such urgent problems as space 

satellite communications and TV allocations. We want this flexibility not to avoid our job, bu t for the very opposite reason—so that 

we can do the job t hat should and must be done by the Commissioners.

I cannot now tell you what cases we would hear or what ones we 

would delegate—or what delegated cases would go to a panel of Commissioners as against an employee board. These would be judgments 

for the full Commission. All I can do is assure you tha t we would 

proceed very carefully in developing our delegation procedures.

The Commission also favors the repeal of the provisions of 5(c), 

relating to the review staff. Under these provisions, the review staff, 

even though it has no other functions than to assist the Commission 

in adjudicatory cases, cannot make any recommendations to the 

Commission.

This restriction is, I believe, not applicable to the opinion-writing 

staff of any other Federal regulatory agency. It is both wasteful and 

inefficient. For, it deprives the Commission of the full assistance of 

which this review staff is capable.

Further, it requires the Commission to pursut a cumbersome, twostep process in disposing of interlocutory matters. Because the review 

staff cannot make recommendations, i t must first receive instructions 

from the Commission on all interlocutory matters, no matter how 

simple or routine, and then retu rn again with a draft opinion and 

order for the Commission’s approval.

Many, indeed most, of these matters could be disposed of at one 

meeting by permitting th e staff to attach a dr aft recommended order. 

The new discretion given by the bill would thus be used to eliminate 

the present inefficient method of handling interlocutory matters. This 

would represent a substantial saving in time and energy for the Commission. In 1960, the full Commission was called upon to dispose of 

363 interlocutory motions.

71 567—61 ------ 4
22 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

The repeal of these unduly restrictive provisions should thus contribute to speedier action, without, in any way, depriving parties of any 

rights.

On the contrary, the safeguards of section 5(c) of the A dministrative Procedure Act and section 409(c) of the Communications Act 

would be applicable.

Our main disagreement with the bill lies in the provision which 

would repeal the second sentence of 409(b) and make review of an 

examiner's initial decision discretionary, upon the vote of a majority 

of the Commissioners less one. The consensus of the Commission is 

tha t a party should have a righ t to obtain some administrative review of an examiner’s initial decision. This is the general pattern 

in the Federal courts, where a party can obtain review of a trial 

court’s decision in the court of appeals. He cannot require the appeals court en banc to hear such an appeal, nor can he, as a m atter of right, obtain oral argument in every case.

So, also, we agree tha t the Commission should be given the authority to use panels or, since we are in the administrative field, employee boards and to act without oral argument in those few instances 

where it is appropria te to do so. But we would afford the righ t to 

administrative review.

We do not think such mandatory review will result in clogging the 

Commission’s processes, if—and I emphasize this—the Commission 

is given full discretion with respect to delegations and oral argument.

If the appeal involves routine matters, it can be heard by a panel 

or employee board. If i t is lacking in substance, it could be quickly 

resolved on the pleadings.

Any application for discretionary review of the panel’s or board’s 

decision could be promptly determined, afte r consideration of the 

staff’s analysis and recommendation.

We would not expect such applications to add a new factor of delay, since we would hope that, for the most p art, the decisions made 

in these delegated, routine cases would be correct and thus the application could be quickly acted upon.

For these reasons, we feel that the procedure that we recommend 

will greatly benefit the Commission, without diminishing in any substantial wav the parties’ rights to full and fa ir administrative process.

Section 2 of the bill also provides for the tran sfer of assignment 

functions, excluding assignments of Commissioners, from the Commission to the Chairman. We do not believe any revision of existing 

law is needed in this respect. The Commission lias already delegated 

to the chairman a great deal of authority in this area and undoubtedly would delegate further authority to assign staff personnel to 

hear adjudicatory cases or handle other matters, should TI.R. 7333 

become law. For the chairman is the agency’s chief executive officer, 

with the duty—and I quote from section 5(a) of the act “generally 

to coordinate and organize the work of the Commission in such manner as to promote prompt and efficient disposition of all matters within the jurisdiction of the Commission.” But the Commission feels 

tha t such assignment auth ority should stem from the Commission 

and not the statute. In this way, a future chairman will be bound 

to act fairly in his assignments.
FEDERAL COM MUNIC ATIONS COMM ISSION REOR GANIZAT ION 23

While it is true tha t other checks on abuse of such authority would 

exist, such as rescission of the delegation and consideration of the 

matter by the full Commission, such checks are more cumbersome 

and do not, we think, carry the same psychological weight.

In short, we agree with the objective of this provision but think it 

can be more wisely accomplished by agency, rath er than statutory, 

action.

Turning to section 3 of the bill, we would urge that the ban in 

section 409 (c) (2) against ex parte presentations by a—

person who has participated in the presentation or preparation for presentation 

of (an adjudicatory) case * * * 

should not be dropped.

While it is true that ex p arte presentations would be barred irre ­

spective of section 409(c) (2), tha t provision does serve the function 

of proscribing such conduct by parties and thus could be the basis of 

criminal action under section 501.

Furthermore, it is desirable tha t the law be explicit on this subject, and not dependent on case precedent, however well established.

Second, rath er than retaining the separation of functions provisions of the present 409(c) (3), it would be sounder to return to the 

separation of functions provisions of section 5(c) of the Administrative Procedure Act.

For again, it is wasteful and serves no valid purpose whatever to 

cut off the Commission in adjudicatory cases from its chief legal 

officer, the General Counsel; yet 409(c) (3), or 409(c) in the bill, does 

this with its reference to—

* * * persons engaged * * * in any litigation before any court * * ♦

The test laid down in the Adm inistrative Procedure Act is, whether 

the staff person has engaged in investigative or prosecuting functions—

in that or a factually related case.

Because this test is directed squarely to the fairness problem involved, 

we urge its adoption in the bill. Of course, this standard should be 

applicable to all cases of adjudication, including initial licensing.

The other points are fully covered in the report and I respectfully 

refer the committee to that report. May I say in concluding th at the 

Commisison deeply appreciates the committee’s decision to hold hearings so promptly on IT.R. 7333. We recognize this as indicating the 

committee’s great desire to aid the Commission in the important 

tasks before it. We will cooperate in every way to facilitate the passage of much needed legislation along the lines of IT.R. 7333.

Mr. Chairman, I should like to say here in passing that, in behalf 

of the Commission, we appreciate the spirit of your remarks opening the hearing. It is in that spiri t that we got together on a suggestion of our own. As far as my own individual views are concerned, 

and my colleagues are here to express theirs should the committee desire, I would personally adhere to the position tha t I took on Reorganization Plan No. 2. This means that I would favor the provisions 

of II.R. 7333 with minor revisions; specifically, that I would make a 

review of an initial decision discretionary rath er than mandatory.

Tha t does not mean, however, that I oppose the “consensus” bill 

we submitted to you as an attachment to our report. I think it is a
24 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

good bill, that it would be of great help to us, aud I would enthusiastically welcome its passage.

My only point in saying tha t is th at I think H.R. 7333 is a better 

bill and if I had my “druthers,” I would prefer it.

I would be pleased to answer any questions.

The Chairman. Mr. Minow, I want to thank you for your statement, and your clear analysis of this problem and the efforts tha t 

have been made by the Commission in coming up with some appropriate suggestions in regard to the approach to the problem.

Mr. Moss, do you have any questions ?

Mr. Moss. Mr. Chairman, I have not had the opportunity to digest 

this material.

The Chairman. Mr. Springer?

Mr. Springer. Mr. Chairman, would you turn to page 5 of your 

statement ?

Mr. Minow. Yes, sir.

Mr. Springer. This has to do with review and I assume that you 

and the members of the Commission have gone over this matter of 

review rather carefully ?

Mr. Minow. Yes, sir. We have, sir.

Mr. Springer. Now, I take it tha t there would be instances where 

the Commission would hear a m atter in its entirety. That would be 

true in some instances?

Mr. Minow. I think there would be no doubt about that, by way 

of my own judgment, in any case let us say of failure to renew a 

broadcast license.

Mr. Springer. You are talking about “major” and you classify 

tha t as major?

Mr. Minow. Yes, th at or revocation of a license.

On m atters which we would categorize as being of very substantial 

importance I can assure the committee tha t the full Commission 

would review these matters.

Mr. Springer. Tha t is one where the Commission would hear it en 

banc, right?

Mr. Minows Yes. I can only speak personally on that. This 

would have to be subject to a Commission decision.

Mr. Springer. Secondly, I take it tha t you would also have what 

you call a panel. Would that be a panel of Commissioners?

Mr. Minow. Well, we would like the discretion to have several 

kinds of panels. I think we would have panels of Commissioners in 

certain classes of cases. We might also, should the Commission agree, 

have panels of employees and boards to hear other kinds of cases.

Mr. Springer. Tha t is three kinds thus far. Tha t is panels of the 

Commission, one.

Mr. Minow. Right.

Mr. Springer. And panels of employees, and boards. That is three. 

I take it the fourth would be those where it was not felt necessary to 

have a panel of the Commission or panel of employees b ut it would 

be resolved on the pleadings. You have these words “It would be 

quickly resolved on the pleadings.”

Mr. Minow. Righ t, but to clarify that, there would have to be 

some entity to make that judgment on the pleadings.

It would have to be an individual Commissioner or one of these 

panels or somebody to do tha t.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 25

Mr. Springer. Do you have any idea of having individual employees of the board hear these matters?

Mr. Minow. I do not think we have formed any judgment on it 

yet. I think tha t it would be unlikely in my personal opinion but 

it would not be impossible.

If we had one particu lar category of case in which a particu lar 

employee had long experience or special qualifications I could see the 

possibility of it but I think it unlikely.

Mr. Springer. Then you are contemplating hearings on oral argument and hearings merely, we will say, on something similar to a writ 

of certiorari where you might do it on the pleadings without hearing 

anybody in oral argument, is tha t correct?

Mr. Minow. Well, the certiorari principle does not encompass oral 

argument usually.

Mr. Springer. Well, as a result of certiorari, you have the discretion to gran t it either orally or not orally ?

Mr. Minow. Well, the one tha t I would be most familiar with 

would be the U.S. Supreme Court practice. Their certiorari is a 

written petition filed, considered by the full court, and then either 

denied o r granted.

If denied, that is the end of the matter.

If granted, then the matter is set down for oral argument before 

the court and briefs are filed in support of the oral argument. That 

would be the principle, as I understand it, of H.R. 7333 but not of 

the Commission’s bill.

The Commission’s bill contemplates tha t there would be mandatory 

review in every case. The only difference is tha t it would not always 

be by the fu ll seven Commissioners. It might be some other panel or 

group tha t would do the review.

Mr. Springer. Then I take it that, if certiorari or something like 

tha t is granted, tha t in all of these cases you would have oral argument. It tha t contemplated ?

Mr. Minow. I do not think I could say that with complete confidence.

I would say tha t it is the sense of the Commission to provide oral 

argument at some level in the Commission but there may be some 

categories of cases where that would not happen.

Mr. Springer. There would be some categories where you would 

not have oral argument ?

Mr. Minow. Not have oral argument? On this some Commissioners would prefer to have oral argument always at some level of 

the Commission bu t this is a judgment t ha t we have not agreed upon, 

pending whatever authority we are given by the legislation.

Mr. Springer. You have not reached anything concrete?

Mr. Minow’. No, sir. We get some cases, I might say in explanation, which just by reading the pleadings are frivulous and obviously 

filed for purposes only of d elay; in such a category of case we might 

decide that the thin g to do was just to deny it and then, if somebody 

wanted to seek review in court, they could.

Mr. Springer. Now, referring to the delegation of adjudicatory 

proceedings, H.R. 7333 provides for delegation which would require 

a majority of the Commissioners, less one, then holding office. Now,
26 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

tha t is delegation in adjudicatory proceedings, and it would provide 

tha t this delegation could be revoked by three Commissioners, correct?

Mr. Minow. That is right, assuming th at you had a full Commission at th e time .

Mr. Springer. Under present law can the Commission assign 

Commissioners?

Mr. Minow. Can the Commission?

Mr. Springer. Yes.

Mr. Minow. We can in nonadjudicatory matters; yes.

Mr. Springer. Now, II.R. 7333 would change tha t so tha t the 

Commissioners could assign the Commissioners.

Mr. Minow. In adjudicatory matters as well.

Mr. Springer. In adjudicatory m atters as well.

Would this provide in any way t hat the Commission could assign 

the rig ht to the Chairman to assign the Commissioners?

Mr. Minow. Well, I think the Commission could do that; yes. 

Mr. Springer. Under this language?

Mr. Minow. Of 7333?

Mr. Springer. Yes, sir.

Mr. Minow. I think the Commission could adopt such a rule if it 

so desired.

Mr. Springer. That is what I want to be sure of. Then, if that 

is true, Mr. Chairman, is there any change from Reorganization Plan 

No. 2?

Mr. Minow. Well, it can be rescinded, of course, under 7333 very 

easily by a vote of the majority less one.

The Chairman. Would the gentleman yield ?

Mr. S pringer. Yes.

The Chairman. If I understand what the gentleman said I would 

probably take issue with him on it. I purposely left out of this bill 

the authority of the Chairman of the Commission to assign Commissioners.

Mr. Springer. Tha t is not my question.

The Chairman. I thought you asked that.

Mr. Springer. My question was whether or not the Commission, by 

a rule, could assign to the Chairman of the Commission the right to 

assign individual Commissioners. That is what I am trying to find 

out, if tha t power is there.

Mr. Minow. The difference, as I understand it, is that one would 

have done it by statute and what this does is give the Commission the 

discretion, so that it can do it or not do it as it sees fit.

Mr. Younger. Will the gentleman yield?

Mr. Springer. Yes.

Mr. Younger. What is the meaning of this paragraph (4) of section 2? It says:

Th ere is her eby tran sf er re d from th e Commission to th e Ch air ma n of the 

Commission the au th or ity to ass ign Commission person nel, exclusive of mem ­

be rs of th e Co mmission . * * *

Now, does that not exclude the right of the Chairman to assume authority even if it is given to him by the Commission?

Mr. Minow. I think this means tha t the statute does not authorize 

the Chairman to do so, but my interpretation is that the Commission, 

if it wanted to, could so authorize the Chairman. Tha t is why I
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 27

want to emphasize this because I think this should be made very 

clear.

Tha t is why the Commission’s version of its bill just leaves this 

whole subject out.

We feel that, as a commission, we can manage this pretty well and 

have managed it all throu gh the years and we would be perfectly 

happy and tha t includes me, to leave it the way we have it.

This has always been my view all through these past weeks.

Mr. Springer. Would you repeat that?

Mr. Minow. I say this has always been my view. I so testified 

on this.

Mr. Springer. Would you repeat what you testified to? I did 

not get that.

Mr. Minow. That I did not care one way or the other about the 

provision of the delegating to the Chairman.

Mr. Springer. This is the point tha t I am raising, Mr. Chairman, 

and as I said over at the meeting I think th at Brutus is an honorable 

man and I did not say it in the same way th at Shakespeare meant it 

which was rathe r sinister, as you know.

What I meant to say was th at T did feel that there was a considerable danger in any one p arty having control of the Commission by 

virtue of four to three and automatically by some Chairman saying, 

‘T want to assign this and by virtue of the fact tha t I can get four 

people to give this to me I can then have it,” you see.

Tha t is the point that was raised as to whether or not the Commission ought to be able to assign to the Chairman tha t duty which would 

give him that much power. Tha t is the problem raised.

I take it from your testimony tha t it is possible for the Commission 

to assign to the Chairman the authority to assign the Commissioners.

Mr. Minow. I think the confusion is that we have this now except 

we did not have it in the field of adjudication. We have this presently and we have been living with it and gettin g along all these many 

years and the only question that is before us now is whether this is 

going to carry over to another field, the field of ad judication.

On that, the issue, as I understand it, is whether by statute this 

problem should be handled one way or another, or should it be le ft to 

the Commission to decide in its day-to-day operations.

Mr. Springer. That is all, Mr. Chairman.

The Chairman. Mr. Hemphill ?

Mr. Hemphill. I have no questions.

The ( 'hairman. Mr. Younger ?

Mr. Minow. If I may go back 1 minute, I testified earlier and I 

want to repeat this : If the Chairman, meaning in this case me, were 

given the power to assign Commissioners, I would do it on a rotational 

basis in cases and would have no objection whatever to putting that 

into the statute if the committee decides it wants to handle the problem 

by statute.

The Chairman. Governor Thomson ?

Mr.T homson. I have no questions.

The Chairman. Of course, section 2 of this bill does provide for 

authority for the Commission “by published rule or order” to make 

delegations.

Mr. Minow. Yes, sir.
28 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

The Chairman. Now, this would permit the present law to be expanded where those assignments could be made in the case of a he aring examiner or examiners which coincides with the present law, or 

a Commissioner which is the present law, and this would then expand 

the present law to include the authority to establish panels of Commissioners or panel boards of employees.

Mr. Minow. Right.

The Chairman. And the Commission would have the authority to 

make that delegation ?

Mr. Minow. That is right, Mr. Chairman.

The Chairman. So the present law is merely being expanded in 

order to give the Commission an opportunity to meet the vast amount 

of work that it has to deal with ?

Mr. Minow. Exactly, Mr. Chairman. We want to do our job and 

we found tha t under our present system it is exceedingly difficult, if 

not almost impossible, to give our best attention to the problems th at 

deserve it.

The Chairman. Now, I notice that your main objection to the bill 

under consideration which conflicts with the bill tha t your Commission recommends has to do with th e right of review.

Mr. Minow. Tha t is right. I thin k tha t is the principal element, 

Mr. Chairman.

The Chairman. Of course, I have stated heretofore that I recognize 

tha t there is a problem and I have some mixed feelings about it.

Some of these commissions, as we have come to know, have been 

plagued w ith the fact tha t some people just for the sake of opposing 

things and to delay will come in and make a request for a review and, 

whether it is an interlocutory matter or some significant problem, i t 

clutters up the docket and holds up the business of the Commission 

when actually they have no real justification for doing so. Those are 

the things that I would like to meet.

I assume, however, that everyone is in accord in protecting the rig ht 

of the party who really has an interest to be heard, and, from your 

explanation here, you try to sort of split the line on it and say that 

the Commission will make tha t determination to be sure tha t parties 

who really have an interest in an important matter will be given an 

opportunity to be heard but those who come in just in order to be arbitr ary and delay and hold things up, you could deal with by the provisions in your bill ?

Mr. Minow. That is exactly right, Mr. Chairman. I can assure the 

committee and the Congress th at anyone who has a serious and substantial claim will get the full due process accorded to him by the 

Commission.

The Chairman. Of course, if that revision were to be agreed to, then 

the further question on tha t particu lar point with reference to the 

minority position of the majority less one would be unnecessary?

Mr. Minow. Tha t is right. That is the principal difference.

The Chairman. So that issue would be taken care of in the Commission’s approach.

Now, the other difference, which I believe Dean Landis himself 

recommended, has to do with permitting the examiners to discuss 

questions of law among themselves.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 29

Mr. Minow. That is right. We re gard this as quite important because some of our examiners are much more experienced on legal questions than others and our suggestion is consistent, Mr. Chairman, with 

the explicit provision of the Administrative Procedure Act on that 

point.

Mr. Springer. Would the gentleman yield ?

The Chairman. Yes.

Mr. Springer. I have ju st this one question. Since in H.R. 7333, 

Mr. Chairman, there is no comparable provision with S. 2034, does tha t 

mean then tha t the review provisions that presently exist in the law 

would continue?

Mr. Minow. If H.R. 7333 were passed you mean ?

Mr. Springer. Yes.

Mr. Minow. I think that is right. I am not sure we understand the 

question exactly.

Mr. Springer. Do you understand th at Mr. Counselor?

Mr. Geller. As I understand, if H.R. 7333 became the law, the question is, Would the present provisions of review continue ?

Mr. Springer. Yes.

Mr. Geller. T think they would not. Review then would be entirely discretionary upon the vote of three Commissioners, a majority 

less one. If the three Commissioners voted to uphold the decision 

of the examiner or person conducting the hearing, then there would 

be no review. Tha t would be a drastic change.

Mr. Springer. In other words, there just would not be any review 

except the vote of three Commissioners ?

Mr. Geller. Review would become discretionary.

The Chairman. Then the proposal which the Commissioners make 

would be to give a party the right of review but the Commission 

would not necessarily have to grant it ?

Mr. Geller. No; under our proposal, Mr. Chairman, there would 

be a right of review and the Commission would have to pass upon 

the parties’ exceptions.

The Chairman. They would have to pass upon the exceptions but 

they would not have to grant, a full review or oral argument.

Mr. Geller. They would not have to grant oral argument and the 

review could be by a panel or an employee board instead of the full 

Commission. That also would be a big difference from the existing 

law.

Mr. Minow. If we had two panels of Commissioners alone and 

nothing less than tha t we could do twice as many cases as we have 

now. Now all seven of us have to hear every single case.

Mr. Geller. One fu rth er point tha t Commissioner Bartley pointed 

out is that, on the decision of tha t panel or employee board, you 

could file an application of review to the Commission but the Commission could deny tha t application for review without giving reasons. Tha t is essential to our proposal.

Mr. Springer. Is that not important, Counselor, for this reason: 

He has the righ t of appeal to a court; does he not?

Mr. Geller. Yes; he does.

Mr. Springer. If you state no reasons for denying his bill of exceptions, do you not prejudice his case ?

71567—61----- 5
30 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Geller. No; because every issue which he has brought up will 

be ruled upon and the Commission, by denying the application for 

review, will be adopting all the reasons given by the panel or employee 

board. They will become the decision of the Commission and in court 

will be reviewed as such; the party, before going to court, would 

have to raise every issue of fact or law upon which he intended to rely 

in court before some authority within the agency. Before he could 

apply for review to the Commission he would have to raise to the 

panel or employee board every question which he wanted to put in 

that application for review and have them pass upon it.

Mr. Springer. II.lt. 7333 just has no provision for review. It is 

at the Commission’s discretion. They can either review it or not.

Mr. AIinow. Tha t is right.

Mr. Springer. Under S. 2034 it is given there and they can file a 

bill of exceptions or writ of certiorari?

Mr. Geller. Exceptions.

Mr. Springer. But there does not have to be any statement as to 

why it is denied ?

Air. Geller. No; under S. 2034, the Commission would have to pass 

on those exceptions and give reasons. When I say the Commission, 

I want to make clear that it would have to be either the Commission 

or some authority within the Commission which would have to pass on 

the exceptions and give the reasons for denial of each exception.

Mr. Springer. Under S. 2034?

Mr. Geller. Under S. 2034.

Mr. Springer. Mr. Howze, would you listen for just a second? I 

understood tha t under S. 2034 it specifies th at no statment of reason 

for denial of review is required.

Air. Geller. Let me be clear on this, Congressman Springer. In 

408(b) of S. 2034 it provides that “any pa rty to the proceedings shall 

be permitted to file exceptions.” So tha t there is a right to file exceptions and the AP A requires that each one of those be ruled upon.

Air. AIinow. The term “exceptions” is a technical term. I think 

this is where the confusion comes. Under the Administrative Procedure Act this is a technical term. That means th at, if a bill for 

exceptions is filed, it must be ruled on on the merits. It cannot be 

denied bv saying, “This is an unim portant case.”

Air. Spr»:ger. You just cannot use the word “deny” ?

Air. AIinow. No. An exception means you have to decide it.

Air. Springer. I s that the only way in which an appeal could be 

denied ?

The Chairman. Let him proceed and explain just what the procedure is first.

Air. Geller. They would have a right to file exceptions under section 8 of the Administrative Procedure Act. Thev would have a 

right to a ruling on each exception and reasons would have to be supplied; but those exceptions could be passed upon now either by the 

Commission or by a designated authority within the Commission. 

The Commission cannot delegate tha t today, but under S. 2034 tha t 

would be changed and now a panel or employee board could pass 

on those exceptions. It would be discretionary whether or not tha t 

panel or employee board would hold oral argument.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 31

In most cases, I th in k the sense of the Commission is th at the y would. 

On ly where the appeal is friv olo us or lacked any m erit would th ey do 

it j us t on the ple ading s.

A fter the decision of the panel or emp loye e board there wou ld be 

pro vid ed a righ t to ap ply to the Com mission fo r review, th roug h 

appli catio n fo r review. Tha t is in section 5 (d ) (3) and (4 ), and the 

Commission in passi ng on th at ap pli catio n fo r review could gr an t 

or den y it withou t givin g a ny reasons f or its action.

A fter t ha t, the p ar ty wou ld then have a r ig ht t o go to co urt a nd the 

panel or board decision, upo n the den ial of the appli catio n fo r review, 

would become the final decision of the agency.

Mr. Springer. Ju st a moment. I th ink we are in an inter vening 

th ing w hich none of us understands.

I tak e it th at , when you file the exceptions, th at wou ld go the n to 

a pan el o r board o f employees or the Commission ?

Mr. Geller. Or the Commission.

Mr. Springer. And to tho se e xceptio ns t hat a ppeal boa rd or review 

board , is th at righ t, wou ld hav e to give the reasons fo r deny ing his 

app eal ?

Mr. Geller. Tha t is correct.

Mr. Spring er. Now, i f he makes an appeal, the n you tak e it to the 

full Commission.

Mr. Geller. Yes; fro m the em ployee bo ard or th e panel t o the full 

Comm ission ; yes, sir.

Mr. Springer. Th is is reall y a second review, the n, is it no t; an 

app eal fo r a second review ?

Mr. Geller. Th is is an a ppeal fo r a second review .

Mr. Springer. In th at case he does no t h ave to give the reason s for 

the exce ptions which a re de nied.

I did no t un de rst an d th is interven ing appeal. I t was my un de rsta nd ing that, it went e ith er to the panel or to t he fu ll Commission. I 

did no t know th at the re was an in terven ing pan el.

Air. Geller. You un de rst an d though, Con gressm an, th at the Com ­

mission can decide to hear a case its elf.

Mr. Springer. Yes.

Air. Geller. An d to pass on the excep tions.

Mr. Springer. An d cut ou t the int ervening board.

Mr. Geller. I t will have t hat discretio n when th ere is an ex am ine r’s 

in itial decision to choose wh eth er it wa nts to he ar it its elf , wh eth er 

it wants t he pane l to he ar it, or an employee b oa rd to review the decision. Review of th e pane l or employee b oa rd decision is pu rely d isc retio na ry a nd can be d enied wi thou t g iving any reason.

Mr. Spring er. I s the appea l un de r S. 2034 fro m the he ar in g exam ine r to t he panel, eith er one, th e Commission or t he employ ee boa rd, 

autom atic?

Air. Geller. I f th e par ty seeks it, it is. He has a righ t.

Air. Springer. An d it m ust be gra nte d.

Mr. Geller. Th e exceptions mu st be pe rm itted un de r 409(b) an d 

mu st be passed upon un de r the Ad minist rativ e Proc ed ure Act.

Air. AIinow. I am glad th at came out here.

Th e Chairm an. Let us no t leave the issue the way it is. Th ere 

is sti ll one elem ent missing. Air. Sp rin ge r is t al ki ng about the panel
32 FEDERA L COM MUN ICATIONS COMxMISSION REORGA NIZA TION

or employee board but the Commission itself could pass on the exceptions.

Mr. Geller. Definitely, sir.

The Chairman. And have to give reasons why it denied the exceptions.

Mr. Geller. That is right.

The Chairman. Now then, on a petition for reconsideration the 

Commission could deny it and not have to give reasons ?

Mr. Geller. No, if the Commission denied a petition for reconsideration, section 405 would still be applicable and the Commission 

would still have to give a concise statement of the reason for denying 

the petition for reconsideration.

The Chairman. Then under tha t proposal, S. 2034, the only time 

tha t the Commission would not have to give reasons for a decision 

would be on a petition for consideration of a matter tha t had been 

passed on either by a panel or an employee board ?

Mr. Geller. Correct.

Mr. Minow. Tha t is exactly right.

Mr. Hemphill. May I ask one more question?

The Chairman. Yes.

Mr. H emphill. Do you agree with Dean Landis when he says that, 

when there is this petition for review or a petition for what we call in 

court certiorari tha t there is an automatic stay of execution ?

Mr. Minow. This is specific under the law. This is explicitly covered by the law.

Mr. H emphill. If we pass H.R. 7333, th at rule would not change?

Mr. Minow. Not a bit.

The Chairman. Now, with reference to the delegation of authority, 

does the Commission, by order or rule, decide what matters will be 

referred to a panel or employee board or do you do it case by case?

Air. Minow. This is one place, I think, where there is a difference 

between H.R. 7333 nd S. 2034. Our suggestion is that we be allowed 

to do this without having an informal rulemaking proceeding, just 

as we now do any internal arrangement of our functions; tha t is one 

of the differences between the two bills.

We would prefer not to have to undertake informal rulemaking of 

notice and comments in order to change or make delegation rules.

The Chairman. In other words, as it stands now, it would be pretty 

much on a case-by-case basis?

Mr. Minow. My prediction would be that we would hit on certain 

categories. I think the ICC has done this with some success. We 

would hit a certain category of cases and say, “That category in the 

safety and special field will go to a panel and this category will go to 

a panel of Commissioners.” We would hit on certain groups of cases.

The Chairman. Referring to a statement that you just made a moment ago regarding the exparte problem, I think i t would be a ppropriate to state that TT.R. 7333 omits tha t provision because th at particular aspect was covered for all agencies in H.R. 14 which has been 

a matter of hearings.

Mr. Minow. We assumed tha t was the case, Mr. Chairman. We 

wanted to call tha t to the committee’s attention.

The Chairman. Mr. Moss, do you have any further questions?

Mr. Moss. No.
FED ERAL COM MUNIC ATIONS COM MIS SIO N REORGANIZATION 33

The C hairman. I wonder if any other member of the Commission 

has any further comment to make?

Mr. Minow. Commissioner Ford, T think, knows more about the 

draftin g of this thing than anyone else.

STA TEM ENT OF FR ED ER ICK W. FORD, COMMISSIONER, FED ERAL 

COMMUNICATIONS COMMISSION

Mr. F ord. I have only two things, Mr. Chairman. One is with 

respect to the mandatory review. This makes oral argument discretiona ry and I personally feel that oral argument should lie preserved 

as a m atter of righ t at some stage of the proceeding, not necessarily 

before the Commission but a t some stage in the proceeding. In view 

of the fact tha t we were undertaking here to get a bill to which the 

Commissioners could all agree, and since in practically every other 

administrative agency the right of oral argument is discretionary, it 

seemed to me that in the major cases and the ones where it really made 

any different like in revocation, renewals, hearings on renewals, matters of t hat kind or important cases, comparative cases, the Commission would give oral argument. There has not been any difficulty 

with tha t in other agencies.

So I receded from tha t point even though I think it should be 

preserved.

The second thing is this question of discretion. We talk about discretionary review under the House bill and I am concerned that the 

courts will say, “I f you do not state the basis for your discretion, how 

can we review it to determine whether or not you have abused it,” 

and so on. In the end, we w’ill end with a requirement by the court 

that we state in detail the basis for the exercise of our discretion.

Now, in the Senate bill we complete the entire hearing process, the 

initial decision, exceptions, oral argument where appropriate, before 

either the Commissioner or an employee board or panel of Commissioners and the entire exceptions are all there.

Now, of course, we do reserve in that the right to order any proceeding before the Commission at any stage for full review but, as soon as 

the hearing is held, the evidence is taken, the exceptions, the parties 

have their oral argument, then the Commission, in order to control 

the policy—and a good bit of policy is made in these hearing cases— 

the Commission, before they could go to court would have an opportunity to review and say, “We want to bring this up,” or “This is fine.” 

In other words, it gives us tha t supervisory authority over these adjudicatory cases and, once we decide “This is one that we should hear 

further ,” then we would bring it before the full Commission. In that 

case, of course, we would follow the procedure of 405 which would 

require concise statements of the basis for our ordering further rehearing and so on, so that, it seems to me th at the Senate bill does 

spell out and relieve the Commission of the great detail tha t I am 

afra id the courts would enforce on us in the exercise of this question 

of discretionary review.

Those are my only two points.

The Chairman. Do you feel, Mr. Ford, tha t the bill such as you 

recommend, appendix A to the statement here, would be desirable?
34 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. F ord. I think that it is almost indispensable th at the Commission have some relief in the nature in that bill, and it seems to me that 

the bill was drawn as carefully as could be done, and, while there is 

not too much difference between that and the House bill-----

The Chairman. Only on a couple of major points.

Mr. F ord. There is a difference in language.

The Chairman. Yes.

Mr. Ford. And there are good reasons for each of those changes in 

language, to try to make it more in conformance with the Administrative Procedure Act. Therefore, court decisions involving other 

agencies would be precedent here.

Now, we have seen in the last few weeks the difficulties involved 

when detailed procedures are spelled out in one act in these administrative agencies and not in another. Witness the difficulty we got 

into with Reorganization Plan No. 2 as applied to the Communications Act whereas th at same difficulty did not present itself with respect to other acts.

So that, this really undertakes to bring it into line with other administrative agencies and give the Commission the flexibility we need.

Sometimes it seems to me as though the Commissioners are involved 

in sitting in justice of the peace cases instead of devoting their time 

and energies to the national problems in communications, and this has 

been a really serious problem with us.

We spent many days in recent weeks, and will in the future, in 

listening to many oral arguments which could much better be disposed 

of by subordinate boards.

Tlie Chairman. The Commission then took Reorganization Plan 

No. 2 and this bill, II.R. 7333 ?

Mr. Ford. That is right, sir.

The Chairman. And considered the objectives of it and drafted the 

bill attached to the Commission’s report, which has become the Senate 

bill?

Mr. Ford. Wha t we were undertaking to do was to take the objectives of the House bill, of Reorganization Plan No. 2, and preserve all 

of the objectives of those bills and fit them into the Communications 

Act and the Administrative Procedure Act in what we thought would 

be the most workable way.

The Chairman. You thin k it is highly imperative tha t you have 

something along that line?

Mr. Ford. I think it is just indispensable for us, to do the other 

work which is tremendously important, to have this bill.

The Chairman. May I inquire of the other members of the Commission if tha t is your feeling about it? Mr. ITyde ?

STATEM ENT OF ROSEL H. HYD E, COMMISSIONER, FED ERAL 

COMMUNICATIONS COMMISSION

Mr. Hyde. Mr. Chairman, I think my views, or any additional 

views tha t I might wish to offer have been covered by Commissioner 

Ford's statement. If I might have just one moment on the provision 

of H.R. 7333, section 2, paragraph (4), where the bill would transfer 

from the Commission to the Chairman the authority to assign Commission personnel, I Mould just make this observation: tha t I think 

tha t the purposes of tha t provision Mould be more effectively accom-
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 35

plislied if this were a delegation from the Commission to the Chairman. The Chairman must work with the assistance of his fellow 

Commissioners and it would give them a sense of participation and 

responsibility. I thought those reasons were significant enough to 

mention at this time.

The Chairman. Tha t is what your proposal would do ?

Mr. Hyde. Right, sir.

Mr. Springer. Could I ask a question, Air. Chairman ?

The Chairman. Yes.

Air. Springer. Would you repeat tha t and tell me the section you 

refer to ?

Air. H yde. I am referring to H.R. 7333, page 3, subparagraph (4). 

It begins at line 17.

There is hereby transfer red from the Commission to the Chairman of the Commission th e a uth ority to assign Commission personnel * * *.

And my thought was that, if this delegation to the Chairman were 

made by the Commission as a continuing matter subject to review 

by the Commission, tha t the Chairman then would always be conscious of the delegation from the other members.

I am not saying tha t Chairman Alinow would not be aware of the 

interest of the other Commissioners but what I am saying is tha t in 

any situation any Chairman would be working under notice th at he 

was exercising authority delegated by the Commissioners and for tha t 

reason would find it appropriate to ask for and get a sense of teamwork. The other Commissioners would feel a responsibility which 

they might not feel if the Chairman were exercising authority given 

to him by statute.

Air. Springer. Now, Air. Hyde, the question I raised with the Chairman a moment ago was not th at because, as I understand it, in section 

(4) that is delegated by the Commission. The Chairman only has 

the powers that the Commission gives him even in section (4), is that 

right ?

Air. H yde. Under our present statute the Chairman has certain responsibilities as Chairman in the sense th at he is appointed to be the 

chief executive officer. However, we have by administrative order 

given him certain administrative duties as a delegation from the Commission but he, of course, exercises those with an awareness t hat they 

are from the Commission and I think with a feeling that it is appropriate to discus* with them how he exercises th at authority.

Air. Springer. Under this section (4) it would still be delegated by 

the Commission.

Air. Hyde. I believe not. I believe if para graph (4) becomes law 

tha t this righ t of the Commission to assign matters would have been 

effectively transferred to the Chairman.

The Chairman. Except for Commissioners.

Air. Hyde. Except for Commissioners, thank you.

Air. Springer. I still am not clear yet, Air. Ily de :

The re is hereby tra nsferre d from the Commission to the Chairman of the 

Commission the autho rity to assign Commission personnel.

Let us leave out the rest.

* * * autho rity to assign Commission personnel * * * to perform such functions as may be delegated by the Commission * * *.

Tha t still is delegated by the Commission, is it not ?
36 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. II yde. I th in k th at th is “as may be deleg ated by the Com mission” r ela tes to fun ctions.

Th e Chairman (r ead in g ):

* * * pu rs ua nt to pa ra gr ap h (1 ).

Of cou rse the autho rit y is in par ag ra ph (1 ).

Mr. H yde. That is r ight. But the a ut ho rity to assign p ersonn el to 

ca rry out those fun ctions would be giv en to the Ch airm an by par agr ap h (4 ).

Th e Chairm an. Not u nt il the Com mission gave h im that au th or ity 

un de r p ar ag ra ph (1).

Mr. H yde. Ma y I pu t it th is way. Th e del ega tion of fun ctions 

wou ld have to be made by the Com mission, as th e Ch airm an has 

sta ted , the del ega tion of fu nc tio ns ; but, th e Commission ha ving delegate d the fun ctions, the Ch airm an un de r pa ra gr ap h (4) could 

assign person nel.

Th e C hairman. That is r ig ht .

Mr. Springer. I th in k we are tal ki ng abo ut the same th ing. I t does 

hav e to be deleg ate d by th e Com mission pu rsua nt to pa ra gr ap h (1 ), 

does it no t ?

Mr. H yde. Th e fun ctions do have to be deleg ated by the Com mission.

Mr. Springer. I wa nt to come bac k to this. Th is is a m atter of 

public policy, Air. Com missioner. I raised a que stio n as to wh eth er 

or not, by th is section pr ov iding fo r the ass ign me nt of Comm issioners 

by the Ch airm an , he is voted th at au thor ity . Now in substance the 

question is simply t h is : D o you b elieve th at the Com mission ought to 

be able to assign t o the Ch air man t he r ig ht to assign Com missioners ?

Mr. H yde. I believe t hat it wou ld be ap pr op riate and des irable fo r 

the Com mission to give the Ch air man au thor ity to desig nate pe rsonnel. It does n ot incl ude C omm issio ners here.

Air. Spring er. Di d you g et my qu estion, Air. C ommis sioner ?

Mr. H yde. I u nderstoo d you to ask me i f the Ch airm an o ug ht to be 

autho riz ed to a ssig n Comm issioners to duties.

Mr. Springer. Tha t is rig ht. Oug ht we to gr an t, as a m atter of 

public policy, a section of the law which says th at the Com mission may 

assign to the Ch air ma n the righ t to assign Com missioners? That is 

wh at my question is. That is a m at te r of pu blic policy.

Air. H yde. I t is a m atter of p ublic policy. I do no£ und erstan d the 

bill before us as prop osing this. Com mission ers are exe mpted here. 

I do no t th in k th at it wou ld give any pa rtic ul ar difficulties because 

the Com missioners, ha ving made the delega tion, could cha nge it at 

any tim e any difficulties wou ld arise.

Mr. Springer. Tha t is tru e. T hat is tru e. Th ey could, bu t th at is 

no t my question. Th e que stio n is, as a m at ter of p ublic p olic y, ou gh t 

he to have this righ t? That is the q uestion.

Air. H yde. Ac tua lly in practic e at the Commission whe n it h as been 

a m atter of a ssigning a Com mis sioner to a pa rtic ul ar task , it has been 

done in conference. I t is ac tually a m atter of nomi natio n by the 

Ch air man a nd acquiescence or a pp rova l by the Bo ard . I would expect 

it would con tinue to operate that wa y.

Air. Springer. I will let your an swer re st, Air. Commissioner.

I will n ot pu sh i t any fu rthe r.

Tha t is all, Air. Ch airma n.

Th e Chairm an. Air. Bartle y, do you have any commen ts to mak e?
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 37

STATEM ENT OF ROBERT T. BARTL EY, COMMISSIONER, FEDERA L 

COMMUNICATIONS COMMISSION

Mr. Bartley. Mr. Chairman, after studying the reorganization bill 

and II.R. 7333, the Commission prepared what has been introduced 

as S. 2034 which I much prefer, and it is not just a consensus with 

me. I endorse it heartily.

The Chairman. Thank you.

Mr. Craven, do you have any comments?

STATEM ENT OF T. A. M. CRAV EN, COMMISSIONER, FEDERAL 

COMMUNICATIONS COMMISSION

Mr. Craven. Mr. Chairman and members of the committee, as I 

testified before, I am not an attorney and I endorse what our Chairman 

said in his statement as well as I will agree to S. 2034.

I must admit tha t sometimes I am persuaded by the last lawyer 

who talks.

The Chairman. Thank you.

Mr. Lee?

STA TEM ENT OF ROBERT E. LEE , COMMISSIONER, FEDE RA L 

COMMUNICATIONS COMMISSION

Mr. Lee. All I care to say is that 1 have relied a great deal on the 

lawyers on the Commission in the draftsm anship of this bill.

I had only one reservation. 1 can say that, in my experience, J 

have not found the oral argument process to be a great hardship on 

me and I would like to see the right of oral argument preserved.

In my 8 years I can think of only several cases that perhaps I 

should not have heard but it was not apparent to me until afte r I 

heard them.

Mr. Springer. Could I ask a question ?

The Chairman. Mr. Springer.

Mr. Springer. This is very quick, Air. Lee. As I understood from 

what you have said and what, one other Commissioner said, Mr. Ford, 

you felt tha t there was a definite advantage in preserving the right 

of oral argument ?

Mr. Lee. Yes, th at is my feeling.

Air. Springer. Under this, as I understand it, you would have to 

answer the bill of exceptions but you would not have to gran t oral 

argument.

Air. Lee. It would be discretionary. I went along because every 

time a request would come to me for oral argument I think 1 would 

vote to have it. I think I can afford this 20 minutes.

Air. Springer. That is all, Air. Chairman.

The Chairman. Air. Cross?

STATEM ENT OF JOH N S. CROSS, COMMISSIONER, FED ERAL 

COMMUNICATIONS COMMISSION

Air. Cross. Air. Chairman and gentlemen of the committee, I testified as you may remember in favor of Reorganization Plan No. 2 and, 

since H.R. 7333 closely parallels tha t plan in my opinion, I would 

71567—61----- 6
38 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

pr ef er th at bill with minor ame ndm ents, like the chair ma n said. 

However, I am in gen era l agree me nt with my colleag ues on the Com ­

mission ’s rep ort on H.R. 7333. The repo rt, reflecting as it does the 

composite views of all seven Commissioners, n ece ssa rily embodies var ­

ious comprom ises of pre fer ences adv anced by individu al Com missioners. W ith ou t de tra cting fro m Com mission un an im ity in the 

adoptio n of its rep or t, I nev erthel ess desire to ap prise th is committee 

of the par ts of the r ep or t w hic h a re not in fu ll acco rd with my individual views, to w it :

(1) I pr ef er t hat p rov ision in section 2 of H.R. 7333 (whic h spec ­

ifies th at any rul e or orde r de leg ati ng Commission fun ctions may be 

resc inded by a vote of a major ity , less one, of Com missioners the n 

ho lding office) to the Com mission ’s pro posed d ra ft bill, which is absent 

in th is reg ard. Ou rs is a bi pa rtisan agen cy in which no more than 

four C omm issioners m ay be o f the same politi cal pa rty. In my op inion, II. R. 7333 wisely provide s th at no bare m ajor ity of Com mission ers m ay rid e roughsh od ove r a ba re minority by rep eated ly delega tin g fun ctions which the minority would be powerless to rescind.

(2) I also pr ef er th at pro vision of section 2 of H. R. 7333 (whic h 

wou ld tran sf er to the chair ma n au thor ity to assign Commission per ­

sonnel, exclusive of Com mission ers) to the Com mission’s proposed 

dra ft bill, which would no t cha nge existing law. I believe th at the 

Commission could more effectively and exp editio usl y acco mplish its 

functio ns by reposin g this p ow er in its chai rman.

In thi s connection, I would, of course, exe mpt the e mplo yees on the 

perso nal staff of the ind ivi dual Com missioner. Tha t is all I have.

Th e C hairman. Ar e th ere an y qu estions ?

Mr. Moss. Yes, I hav e a questio n.

You are proposin g th at t he res cin din g of a delega tion by the Com ­

mission be accomp lished by one vote less th an it req uir es to dele gate ?

Mr. Cross. Yes, sir.

Mr. Moss. I think th at is a very novel pro posal. On many occasions I wou ld have appreciat ed , as a Mem ber of the Congress and the 

com mittees here, th e righ t to rescind acti ons of some of th e committees 

wi th less than a majo rity. I th in k it could lead to sta gn ati on on the 

Commission.

Mr. Cross. No, sir. I do no t th in k so. I just feel th at th is is a 

safegu ard which was par t of the Re organiz ation Pl an No. 2 which I 

th in k is a wise one, and one I wou ld like to see pre ser ved .

Mr. Moss. Sir, I would disagr ee th at it was pa rt of Pl an No. 2. 

Par t of No. 2 was t hat a major ity less th an one could b ring the m atter 

up fo r consider ation by the Commission, not th at it could rescind the 

action of th e C ommission.

Th e division in the Com mission I imagine , as in the committees of 

Congres s, is th at usu ally yo ur mi norities are not necessa rily pa rti san 

minorities.

Mr. Cross. Tha t is tru e.

Mr. Moss. Th ere is a m atter of philosop hy th at enters into the 

ha nd lin g of th at , so th at th e bi pa rtisan na ture is no t goi ng to be 

pre ser ved by th is b ut you are going to give to a minority philosophically a power greater, in some respects, th an th e m ajo rity.

Th e majority could ado pt and the minority c ould the n rescind.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 39

The Chairman. 1 do not believe, if the gentleman will permit, th at 

the Reorganization Plan No. 2 provided that the action of the Commission in making a delegation could be rescinded by a majority less 

one. The reorganization plan dealt only with the right to review 

with reference to a majority less one.

Mr. Moss. Tha t is correct.

The Chairman. Thank you very much, Mr. Cross.

Is there anything further, Mr. Ford ?

Mr. Ford. Mr. Chairman, there has been a lot of discussion about 

the public policy with respect to the authority of the Commission to 

delegate to the chairman to assign Commissioners and whether or not 

tha t is in the present law and whether or not it should be continued. 

In H.R. 7333, in the delegation sections, the proposed bill would say 

tha t—

* * * the Commission may, by published rule or order delegate any of its 

function s to a division of the Commission, an individual Commissioner, a hearing exam iner * * *

and so on, which in effect would say that the Commission could delegate to any member of the Commission in addition to the chairman 

Ihe authority to assign, which of course would be entirely inconsistent 

with the whole philosophy of the thing; so that, it must mean the 

chairman.

So that, under the proposed bill, H.R. 7333, it would be permitted. 

Under S. 2034, in section 2 of that bill it provides that

The Commission may. by rule or order, delegate any of its functions to a panel 

of Commissioners, an individual Commissioner

and so on. Under the present law which is section 5( d) (1 ), it 

provides:

Except, as provided in section 409, the Commission may ♦ ♦ * assign or refe r 

any portion of i ts work, business * * * 

and so on.

There is another provision in section 4( j) which says that

The Commission may conduct its proceedings in such manner which will best 

conduce to the * * * ends of justice.

and so on. So th at, over the years, the Commission has had its authority and has exercised that authority to delegate to the chairman 

in Administrative Order No. 1, and preceding that it was Administrative Order No. 8, the authority to assign personnel. It spells out 

the extent of that authority but it pretty generally gives him the righ t 

to employ people up to grade 14. It gives him the righ t to assign 

people.

In certain instances he is required to report it to the Commission. 

In other instances he is not and he can subdelegate some of those 

functions.

So tha t there has never been any difficulty at all about the Commission itself having the power to delegate to the Chairman the authority to assign. They have never given him the authority to assign Commissioners and in all probability never will, but you have to 

remember that the Congress has provided in title 28, section 4G, I 

believe, that the courts shall assign the preparation of decisions.
40 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Now, in practic e, I th ink W eine rs book on “A ppell ate Advo cacy” indic ates that most courts delegate th at au th or ity to the chief judge to 

assign the v arious judges; so th at the re is an e quality among th e Commissioners, inc lud ing the Ch air ma n. Th e Commissions all rea d the 

same so that no g roup o f C omm issio ners is goin g to impose on any one 

pa rti cu lar Com missioner, pa rti cu larly if he feels that he is no t partic ularly well qualified to do tha t. So t hat , ov er t he years, the a ut ho rity of the Com mission to assign Com missoners or to delega te the 

au thor ity to the Ch air ma n to assig n pers onnel has not caused any d if ­

ficulty at all and 1 agre e with Comm issio ner Hyde tha t the law, as it 

presen tly sta nd s or the law as proposed, eit he r one, wou ld continu e 

to op era te in su bstan tia lly the same fa shion it has in tlie pas t.

Now, with respect to the question of the majority , less one, th at was 

left out of S. 2034. and the reason for th at was th at it was pu t in thi s 

initially because o f the delegatio n of a utho rity by s tatu te to the C ha irman.

Now, when th at comes out, the basis fo r the majo rity, less one, no 

longer exists a nd there for e it was left out of this d ra ft.

The C hair man. You d istingu ish th en a difference between the delegation of fun ctions and the ass ignmen t of pers onnel ?

M r.C ross. Oh, yes.

Th e Chairman. Wh at is t he difference between deleg ati ng a fun ction to a Com mission er and ass ign ing the Com missioner to a task?

Mr. Cross. We ll, in one you dele gate a fun ctio n. I would pu t that 

as class. F or insta nce, the d elegation to the C hairm an, the delegation 

to exa min ers. You dele gate a class of thin gs.

Wh en you assign a Comm issio ner you norm ally assign him to a par ­

tic ul ar thing .

For inst anc e, at the present time Commission er Cra ven is in charge 

of an ad hoc grou p made up of staff mem bers throughout the Com ­

mission. He is assigned to that pa rti cu la r job by the Comm ission to 

try to work out our prog ram with respect to space. Th at is a specific 

assignmen t.

Usual ly the way those assignments are made, and we have many 

assignm ents of th at kind, is that the Ch air ma n, in balan cin g out the 

various Comm issioners a nd what the y do, recom mends the assi gnm ent 

of a pa rticul ar Comm issio ner and la Iks to him about it and he agrees, 

and then the Commission makes the assignment on the reco mm end s - 

t ion of the Ch airma n.

Th at is the way we have been funct ioning over the years and I would 

expect in th at p ar tic ul ar are a we would fun ction the same.

Th ere is one o ther m atter that seems to have become confused. Tha t 

is this question of oral arg um ent. rFhe oral arg um ent would not 

necessarily be before the Commission.

Th e oral argument would be before, a subord ina te au th or ity or whoever was pas sing on these exceptions.

'Fhe C hair man. It could be lie fore the Commission ?

Air. Cross. It could be before the Commission bu t not necessa rily 

before the Comm ission. No rm ally, the ora l argume nt in the case in 

which review was not g ranted would be before the employee board or 

pan el of Commissioners. Then, if it came before the full Commission, 

in all prob ability t her e would be a no ther argu men t; but, if it came up 

and the Commission denied review, the n the y would say “denied ” as
FEDERA L COM MUNICATIONS COM MIS SIO N REORGANIZAT ION 41

the court does in certiorari and there would be no oral argument 

furth er.

Mr. Springer. There is no preservation of the right of argument in 

either S. 2034 or H.R. 7333.

Mr. Cross. At no stage. It is discretionary at all stages. Under 

S. 2034 the difference that I was pointing out is that at the lower stages 

whoever is writing the final decision in the case should hear oral argument before he writes tha t final decision whether it is the Commission, the individual panel of Commissioners, or employee board.

The Chairman. Thank you very much, Mr. Cross.

Mr. Chairman and other members of the Commission, thank you 

very much for your testimony.

Mr. Minow. Mr. Chairman, in closing, I would like to say tha t I 

do not think the Commission has even been divided about objectives 

throughout the consideration of the reorganization bill or now. J

should like to pay particu lar thanks to all of them for cooperating 

and p articularly to Commissioner Ford, my predecessor as Chairman, 

who carried a large load in drafting the Commission’s bill. I wanted 

the committee to Know tha t we have worked in very good spirit in 

all of this.

The Chairman. Thank you very much.

This has been very helpful to us and we appreciate your contribution.

The committee will adjourn until 10 o'clock in the morning.

(Whereupon, at 12:30 p.m., the committee adjourned to reconvene 

at 10 a.m., Wednesday, June 14,1961.)

F E D E R A L C O M M U N IC A T IO N S CO M M IS SI ON

R E O R G A N IZ A T IO N

W ED N ESD A Y , JU N E 14, 196 1

House of Representatives,

Special Subcommittee on Regulatory Agencies

oftiie Committee on I nterstate and Foreign Commerce,

W ashing ton, D.G.

The committee met at 10 a.m., pursuant to recess, in room 1334, 

New House Office Building.

Present: Representatives Harris (presiding), Rogers of Texas, 

Moss, Younger, Thomson, and Hemphill.

Also present: K urt Borchardt, professional staff member; Allan IT. 

Perley, legislative counsel, House of Representatives; Charles P. 

Howze, Jr ., subcommittee chief counsel; Rex Sparger, subcommittee 

special assistant; and Herman Clay Beasley, subcommittee clerk.

The Chairman. The committee will come to order.

This morning we are glad to have as a witness in further hearings 

on H.R. 7333 and related matters, Mr. Robert M. Booth, Jr ., president 

of the Federal Communications Bar Association.

Mr. Booth, we are glad to have you with us.

STATEM ENT OF ROBERT M. BOOTH, JR ., PRES IDEN T, FED ERAL 

COMMUNICATIONS BAR ASSOCIATION

Mr. Booth. It is a pleasure to be here. I have prepared a written 

statement, which I think has been distributed and I would like to go 

through it, if I may, because there are two or three points I would like 

to elaborate upon.

The Chairman. Very well.

Mr. Booth. I am Robert M. Booth, Jr., an attorney engaged in the 

practice of law in Washington, D.C., with offices at 1735 DeSales 

Street NW. I appear as president of the Federal Communications 

Bar Association, an association composed of some 500 attorneys, most 

of whom specialize in practice before the Federal Communications 

Commission.

My appearance in support of the objectives and many of the provisions of H.R. 7333 has been authorized by appropriate resolution 

approved unanimously by the executive committee of the association.

As the representatives of the Federal Communications Bar Association, I testified before a subcommittee of the House Government 

Operations Committee in opposition to Reorganization Plan No. 2 of 

1961 which, by modification of a number of provisions of the Communications Act of 1934, as amended, sought to provide for greater

43
44 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

efficiency in the dis patch of the busin ess of the Fe de ral Comm unications Commission. Th e asso ciation recommended th at chan ges in the 

act be mad e only by Congress af te r fu ll and com plete hearings. I 

concluded my tes tim ony w ith the follow ing stat em en t:

The association stands ready, willing, and able to ass ist the President, the 

Congress, and the Commission in achieving the objectives of Reorganization 

Plan No. 2 by app ropriate legislation.

H.R. 7333 proposes to achieve the objectives of Re organiz ati on 

Pl an No. 2 by the legislative proce ss, an d is dir ected pr im ar ily to the 

ma nner in which ad jud icato ry pro cee din gs would be con ducted.

Section 409(b ) of the Comm unications Ac t now pro vid es th at the 

full Com mission mu st con sider exceptions, he ar oral arg um ent, and 

issue a final decision in every ad judica tory case upon reques t of any 

of the part ies .

In testim ony in heari ng s on Re organiz ati on Pla n No. 2, a numb er 

of the Com missioners sta ted th at ma ny of the ad judicatory cases the 

full Commission is require d to he ar involve relati vely un im po rta nt 

and rou tin e matters and th at , as a res ult , the y are unabl e to concentra te on the im po rta nt cases inv olv ing majo r policy or leg al issues. 

The association c oncurs in th ei r views.

Th e solution pro posed in II. R. 7333 is in two steps. Fir st , section 

3 would amend section 409(b ) of the Comm unications Ac t to eliminat e the man da tory righ t of review by the full Com mission of all 

initial decisions. H.R. 7333 would pe rm it review of an initi al decision, as well as ord ers , repo rts a nd othe r actions, only if the Com mission gr an ts an appli catio n fo r review, or on its own initiative, takes 

act ion to review.

Second, II.R . 7333 would pe rm it the Commission to delega te the 

review to —

a division of the Commission, an individual Commissioner, a hea ring examiner, 

an employee board, or an individual employee.

Th e asso ciation supp orts the proposal to autho riz e the Commission 

to delega te the review of an initial decision, order or action of a 

he aring exam ine r pro vid ed the delegatee or dele gatees are the same 

person s who, un de r section 7 (a) of the Ad minist rativ e Proc edure Act 

con tem plates th at a he aring exam ine r sha ll possess unusual and supe rio r qualifications, abil ity , and exp erience.

To perm it a review of a he arin g exam ine r’s acti ons and decisions 

by a person with less ability and experie nce and few er qualifications 

would effec tively de stro y th e h ea rin g examiner system.

Th e asso ciation recommends th at the same princ iple be ap pli ed to 

the del ega tion of reviews of othe r ord ers, repo rts and actions. The 

review sho uld be con ducted by a person or person s ha ving greater 

experie nce and responsibility.

For exa mple, if an ind ividual Com mission er should c onduct an ad ­

judica tory hearing, the review sho uld no t be made by one or more 

employe es of the Commission, but by a div isio n of the Comm ission 

or the fu ll Comm ission.

Th e associatio n most s tro ng ly recom mends th at the ri ght of at least 

one a dm inist rativ e review be retained and th at exception s be perm itted 

af te r the issuance of an initial decision. When Congress enacted sectio n 8( b) of the Ad minist rativ e Proc edure Act and section 409 (b)
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 45

of the Communications Act, it recognized the possibility of error by 

the presiding officer.

The r igh t to file exceptions and the right to review would eliminate 

many applications for review which otherwise would have to be studied 

and passed upon by the Commission and, when an application for review by the full Commission should be granted, would enable the case 

to be considered by the Commission at an earlier date.

Further , the right of at least one administrative review would decrease the number of appeals under section 402(b) of the Communications Act to the U.S. Court of Appeals for the District of Columbia 

Circuit.

T might add, Mr. Chairman, that we believe tha t actually a mandatory righ t to file exceptions would save time in many cases because 

otherwise, you would file a petition for review, and it would take some 

time to pass upon that. After it was granted, then you would come 

forward to file exceptions.

In other words, you would be taking two steps and the time required for those two steps, ra ther than the one step of filing your exceptions and, if you want the Commission to consider it, file your petition for review by the full Commission at the same time.

Section 3 of H.K. 7333 would amend section 409 of the Communications Act to eliminate the right of oral argument and make it discretionary. The importance of oral argument long has been recognized by the courts and by some of the Commissioners who testified 

yesterday before this committee.

Oral argument occupies only an insignificant percentage of the time 

required for an adjudicatory hearing, affords the reviewing officer or 

officers the opportunity to ask questions, and promotes confidence and 

respect in administrative decisions because the parties know that their 

views have been heard and carefully considered. The association recommends that the right of oral argument l>e retained.

T might add, Mr. Chairman, that the importance of oral argument 

or oral presentation is illustrated by the hearings being held here 

today.

Tfie Legislative Oversight Subcommittee of this committee, in a report issued on Jan uar y 3, 1959, under the heading “Individual Besponsibility of Commissioners for Commission Decisions,” made the 

following recommendation:

The subcom mittee has been impressed with the need for change in the pra ctices followed by some commissions letting the commission staff rather tha n individual commissioners assume responsibility for the p reparation of commission 

decisions and opinion. Tt the view of the subcommittee th at inconsistencies 

in commission decisions over the years are trac eable to a considerable e xte nt to 

the failur e of following the prac tice of having the commission, or the m ajority 

of the commission, designate individual commissioners to assum e responsibility 

for the prepar ation of the decisions or opinions of the commission, or the majority of the commission. It is the view of the subcommittee t ha t this practice, 

which is tradition al with the courts and which has been followed by some commissions. should be adopted by all commissions. It is the hope of the subcommittee that this change will produce a sense of personal responsibility of individual commissioners for the decisions and opinions of the commission and 

will avoid the practic e of having commission staffs assume the burden of reconciling inconsistent decisions reached by the commissions.
46 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

A sim ila r reco mm end atio n is con tained in the Pr es id en t’s message 

whi ch tran sm itted R eorga niz ation Pla n No. 2 o f 1961 to the Congre ss. 

The Pr esiden t said th a t:

Section 3 of the plan also abolishes the “review st af f’ together with the 

functions establish ed by section 5(c) of the Communications Act of 1934 (GG 

Stat. 713), as amended. They can be better performed by the Commissioners 

themselves, with such assistance as they may desire from persons they deem 

appropriately qualified.

The asso ciation concurs in thes e recom mendatio ns and urg es th at 

thes e pro posals of the Pr esiden t and this com mittee be adopted in 

legisla tion . We recognize th at some of the Com missioners are no t 

attorn eys and th at some of the Com mission ers have opp osed sim ilar 

suggestions in the pas t.

How ever, if addit ion al qualified an d experie nce d legal ass istants 

are assigned to each Com missioner, we are confident th at the qu ali ty 

of the decisions a nd opinio ns will be g reatly impro ved and exp edi ted .

Section 1 of I I.R . 7333 p roposes to rep eal section 5(c) of the Com ­

municatio ns Ac t and to a bolish the review staff. One of the pr incipa l 

criticisms of the pre sen t sta tu te is th at the review staff has been fo rbid den to subm it reco mm end atio ns and dr af ts of orders on in te rlocuto ry ma tters.

May I, Mr. Ch air ma n, po int ou t th at th e asso ciation did su pp ort 

leg islation in the Senate a year ago, or 2 years ago, which w ould give 

the review staff au thor ity to mak e recommenda tion s an d prep are 

ord ers on int erl ocuto ry matters .

Un der the pro ced ures now bein g considered, as reco mmended by 

the asso ciation, he aring exa miners wou ld con sider exc eptions to an 

initial decision a nd p repa re a final decision in cases del egate d to them . 

In such instances, the review staff would be unnecessary.

I f the reco mm end atio ns of the Pr es iden t and the subcommittee 

of th is co mmittee t ha t the Comm issioners be responsible f or th e pr ep ­

aration of final decisions and orders are ado pte d, the work should 

be perfo rm ed by the Comm issio ner’s person al assistan ts and staff. 

These changes wou ld eliminate the nece ssity for a review staff.

Th e asso ciation supp orts the pro posal to abolish the review staff 

pro vid ed its duties and person nel are reassig ned as the asso ciation 

has recommended. If the Commission is autho riz ed to abolish the 

review staff, bu t actua lly keeps it su bstan tia lly intact, we fear th at 

the basic obje ctives o f the reo rganiza tio n wou ld not be achieved unless 

the prese nt proh ibi tio n of ex pa rte recommenda tion s conce rning final 

decisions is retain ed.

Section 3 of II.R . 7333 would rep eal section 409 (c) of the Com ­

mu nic ations Ac t and wou ld pe rm it the Commission to con sult with 

its key employees, such as the Gener al Counsel and chief eng ineer, 

in certa in instanc es in ad judicatory cases.

The asso ciation recommends th at the pre sen t prohibi tio ns be retained . I have been d irected to re po rt th at this is th e only recommendation of th e asso ciation w hich was no t u nan imously appro ved by our 

executive committee.

We recognize the desir ability of the Commission ob tai nin g expert 

advice bu t believe it sho uld be obtained only af te r notice to all 

intere ste d parties. The asso ciation con tinu es to oppose all ex pa rte 

com munica tion s in a dju dicatory cases ex cept on int erloc uto ry m atters .
FEDERA L COMM UNICAT ION S COMM ISSION REORGANIZATION 47

I might give an example of the type of situation with which we are 

concerned. If there is an adjudicatory hearing which involves testimony, say, of two expert witnesses, two engineers, and their testimony 

is at variance, their opinions are different, if the Commission would 

call on its chief engineer, it might be possible for tha t chief engineer 

to tell the Commission, “Well, I believe in this man’s testimony and not 

in this man’s. You should accept his and not his.” We would not 

know the basis of the recommendat ion or to question the chief engineer 

or to point out certain matters which he may not have considered in 

making his recommendation. We believe tha t if the Commission 

needs this expert assistance, and I think it does sometimes, it can request it on the record, or by notifying the other parties. Copies of the 

memorandum can be made available, and the Commission can call in 

its chief engineer or its General Counsel, I believe, in oral argument 

or in other session, if the other parties are represented and get his 

advice. In other words, I don’t think tha t the present prohibitions 

really tie the Commission’s hands as much as has been indicated in 

some of the testimony in the past.

The members of the association’s committee on legislation and 

executive committee have devoted many hours in the last few weeks 

to study of various proposals for improvement of the efficiency and 

operation of the Federal Communications Commission. The solutions 

are not simple. We had hoped to have been able to suggest specific 

language for revisions of H.R. 7333 before this hearing was held. 

Unfortunately, time did not permit preparation of more specific proposals. If the committee should so desire the association would welcome the opportunity to submit specific language at the earliest 

possible date.

Irrespective of what changes are made in the Communications Act, 

there must be close cooperation between the Commission and the bar 

in developing the specific rules of practice and procedure necessary 

to implement the change. Cooperation between the association and 

the Commission has been quite close for some years. We usually have 

been able to understand the other’s views and problems and to arrive 

at mutually acceptable solutions. The association stands ready, willing, and able to work with the Commission in formulating rules of 

practice and procedure which will achieve the objectives of the legislation under consideration.

We appreciate the opportunity to appear before this committee on 

this most important proposal.

The Chairman. Thank you, Mr. Booth, for your statement.

Mr. Moss ?

Mr. Moss. I have no questions at this time.

The Chairman. Mr. Younger.

Air. Younger. Yes. Mr. Chairman, from my standpoint, I would 

like to have the recommendations of the bar before we make a final 

decision on this matter. I am wondering whether you considered 

S .2034 ?

Mr. Booth. Yes, sir; we have considered carefully S. 2034 in just 

the few days we have had available to us.

Mr. Younger. Would you want to comment on tha t bill as compared with H.R. 7333 ?
48 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Booth. I think S. 2034 more nearly reflects the views of our 

association. The main change we would suggest would be the r igh t of 

oral argument, which is discretionary. Some of the suggestions we 

have made in my statement today go more to the way the basic objectives of the two statutes would be implemented.

We think tha t perhaps it is more desirable to spell out in a little 

more detail how the Commission should delegate its functions in these 

adjudicatory cases, but we are in substantial agreement w’ith the oh 

jectives of both bills and particularly with S. 2034.

Mr. Younger. Then, it is your opinion that in the legislation itself, 

the delegation of authority should be spelled out more clearly, rather 

than leave it to rules and regulations ?

Mr. Booth. I think it is desirable to do that, sir, in adjudicatory 

cases. I think it should be made clear tha t you don’t expect a hearing 

examiner to have his work passed upon at the review’ stage by an 

employee, for example, a lawyer, who has been out of law school 2 or 

3 years.

If the hearing examiner is to achieve the stature intended, and 

Dean Landis spoke on this yesterday, I think tha t you have to give 

him the proper support at review time to make sure th at they do have 

qualified people passing upon the petitions fo r review and the exceptions. I think it is desirable to either spell it out in the act, or at least 

in the legislative history.

Mr. Younger. I think you have made a good suggestion about the 

review being conducted by employees or members who have greater 

experience than the trial examiner. In other words, you do not want 

to downgrade the review. It ought to be upgraded.

Mr. Booth. We have some fine hearing examiners. I think the 

quality of their work is improving right along. We can always do 

better, of course, and I think this procedure which we are working on 

now, the suggestions we have made, would help achieve the objectives 

of superior opinions.

I think if the hearing examiners knew tha t their work was to be 

reviewed by either the Commissioners themselves, or by other hearing 

examiners, for example, perhaps the older hearing examiners, from 

the standpoint of service and experience, they would do an even better 

job. I think they would have more pride in their work and more confidence in their work.

Mr. Younger. Thank you, Mr. Chairman.

The Chairman. Mr. Hemphill.

Mr. Hemphill. I have three questions. What are the qualifications for belonging to the Federal Communications Bar Association?

Mr. Booth. Member of a ba r of any of the States.

Mr. H emphill. The same as the rule for practice before the Commission?

Mr. Booth. Yes, generally, sir. The Commission eliminated its 

own bar some years ago. I would say 7 or 8 years ago. Prior to that, 

an attorney desiring to practice before the Commission would make an 

application and certify tha t he had been admitted to practice in one 

of the States or the District of Columbia.

Mr. Hemphill. Then, did I understand you to say tha t you support the idea that the hearing examiner would have the r igh t to make 

a decision at th at level ?
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 49

Mr. B ooth. I am not quite certain tha t I understand your question. 

Let me p ut it this way. At the present time, the hearing examiner 

issues an initial decision which becomes effective in 50 days unless 

exceptions are filed by one of the parties or unless the Commission 

on its own motion stays the effective date of the initial decision.

Under the procedure which we suggest exceptions would be filed 

by the parties as they are now, but the Commission could decide 

whether or not it would itself, sitting as the full Commission, consider 

the exceptions and write a final decision, whether i t would delegate it 

to a division of Commissioners, whether it would delegate it to a specific Commissioner, or whether it would delegate it to an employee or 

an employee board. Wh at we are try ing to point out is we think the 

employee or the employee board should also be hearing examiners, or 

somebody with qualifications even superior to those of the average 

hearing examiner, and they would prepare the final decision.

Did I understand your question, sir?

Mr. Hemphill. Yes, in a way; but you post another thing. We 

have no control in this committee about the 50 days. It seems to me 

that it a pretty long time to get up exceptions. Of course, I believe 

the Federal district courts allow you 40 days. Some State courts allow 

you only 10 days to get up exceptions from the tria l court to the appellate or review court. Since I assume the purpose of this legislation is to speed up the machinery of the Commission, would not H.R. 

7333 speed up tha t machinery as it is written now?

Mr. Booth. I don’t think so, sir. I don’t think it would have any 

effect upon it. Actually, the practice has been after the issuance of an 

initial decision to file exceptions and a supporting brief within 30 

days, or to request an extension of time.

From a practical standpoint, the filings of exceptions or the request of an extension of time to file exceptions, because of the size 

of the record and the complications of the record, stays the effective 

date of the initial decision. In the courts, for example, when we take 

an appeal from the Commission’s decision, we have 30 days in which 

to file a notice of an appeal, but w’e don’t have to submit our brief, 

and our joint appendix, and other pleadings until a date some months 

later set by the court at a prehearing conference or by an agreement 

of the parties.

You see, we don’t have in the practice before the Commission the 

filing of the notice of appeal or intent to file an appeal. We just go 

ahead with the appeal in the form of exceptions, and the Commission has limited the length of exceptions and supporting brief, but 

it still is quite a job in a big case to prepare exceptions so th at they 

are meaningful.

Mr. H emphill. If they had mandatory appeals which you propose 

today, it would be the same system we have in effect now.

Air. Booth. We have tha t in effect, yes. I might say, said, th at the 

Commission also has recommended tha t the present system be continued in its recommendations here yesterday, and its recommendations on S. 2034.

Mr. Hemphill. I was here when the Commission testified yesterday 

on the purpose. I thought I understood tha t this bill, lt.R. 7333, 

was approved by the Commission. Did I misunderstand that? I am 

sorry.
50 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Thank yon very much.

The Chairman. Mr. Moss, do you have any questions now ?

Mr. Moss. Y es.

As I understand it, your principal objections to the language of 

H.R. 7333 go to the making of oral argument discretionary rather 

than mandatory. You want it retained as a mandatory right. Is that 

correct ?

Mr. Booth. Tha t is our principal objection to S. 2034. H.R. 7333 

would also eliminate the mandatory righ t to file exceptions and would 

require us to file a petition for review, which if granted, would then 

authorize us to file exceptions. We think those two steps are unnecessary. We think we should go right ahead with the exceptions.

Mr. Moss. I)o you think you should go righ t ahead with exceptions 

as a matter of right and not a matter of discretion ?

Mr. Booth. Yes, sir; I think it would actually speed up the process. The delays are not in the filing of the exceptions. It is after 

the exceptions have been filed and the manner in which they are 

studied by the review staff, and it is not all together the manner in 

which they are studied by the review staff, but the tremendous workload of the review staff. They have many, many problems up there, 

many of interlocutory matters that the Commission has testified about, 

so that I think the Commission agrees with us, although I have not 

discussed it with any of the Commissioners specifically, that the 

speeding up could occur afte r the exceptions have l>een filed. That 

is actually where our biggest delay is in adjudicatory cases now.

Mr. Moss. I was trying to recall the name of the Commissioner who 

so testified yesterday. I know in the matter of oral argument that 

Commissioner Lee indicated that it should be retained.

However, it is my recollection tha t he was the only Commissioner 

to make that recommendation. I recall none of them on the matter 

of exceptions.

Mr. Booth. As I recall, Commissioner Ford stated his personal 

preference t hat oral argument be retained and Commissioner Lee said 

tha t he found it a very important step and tha t he would probably 

always vote for it.

Mr. Moss. Mr. F ord made a further comment. He stated tha t that 

had been his position; however, he had receded from tha t position 

because of the experience gained by other agencies.

Mr. Booth. You are quite right, sir. That is as I recall his testimony, too. He receded from it to join with the other Commissioners 

in th eir recommendations both on H.R. 7333 and S. 2034, but I gained 

the distinct impression that he personally shared the views of Commissioner Lee that he thought oral argument was an important element.

Mr. Moss. That is where we differ in interpreting his remarks, because I recall his very specific statement. In fact, at the time of his 

testimony, I made the note “has receded because of experience in 

other agencies.”

Mr. Booth. I recall that. I don’t disagree with you on your recollection.

Mr. Moss. It was not a case of joining in the consensus of the Commission, but rather a conviction changed because of experience in 

other agencies following a similar practice.
FEDERAL COM MUNIC ATIONS COMM ISSION REORGANIZA TION 51

Air. Booth. I have the impression and recollection tha t he joined 

with the others because of the experience of the other agencies.

Mr. Moss. It really is a matter of semantics.

Mr. Booth. With respect to this question of exceptions, Chairman 

Minow’s statement of yesterday on page 5 states as follows:

O ur mai n di sa gr ee m en t w ith th e bill lie s in th e pr ov isio n which wo uld re pe al 

th e sec on d se nt en ce of 409 (b ) an d m ak e review of an ex am in er’s in it ia l de ­

cision di sc re tion ar y, upon th e vo te of a m aj ori ty of th e Con un isso ne rs les s one. 

The co ns en su s of th e Co mmiss ion is th a t a p art y sh ou ld ha ve a ri g h t to obt ai n 

some adm in is tr ati ve review of an exam in er ’s in it ia l de cis ion . T his is th e 

ge ne ra l p att ern in th e F ed er al co ur ts, w he re a p art y ca n ob ta in review of a tr ia l 

co u rt ’s de cis ion in th e court of ap pe als.

As I recall, in the last page or so of the statement, Chairman Minow 

said he personally believed tha t the right to file exceptions and the 

right of administrative review should be discretionary rath er than 

absolute or mandatory.

Mr. Moss. Do you subscribe to tha t portion of the statement of 

Chairman Minow?

Mr. B ooth. The one I have read ?

Mr. Moss. On page 5.

Mr. Booth. Yes, sir; I do.

Mr. Moss. The entire para graph, or the portion you read?

Mr. Booth. The portion read with respect to the mandatory right 

to file exceptions. We think tha t oral argument should be retained 

because it takes such a small amount of time.

Mr. Moss. The portion tha t you do not subscribe to then would be 

the additional three sentences at the end of tha t paragraph? Would 

that be a correct interpretation of your position ?

Mr. Booth. I don't altogether understand the statement of the 

chairman, Air. Moss.

Air. AIoss. You do not understand my statement, or the statement 

of the chairman ?

Air. Booth. The statement of the chairman here with respect to 

oral argument in the courts. The practice in the Court of Appeals 

in the District of Columbia Circuit is tha t an appeal is heard and 

considered usually by a panel of three judges. You can petition for 

hearing before the court en banc, or it can, on its own motion, decide to consider the matter en banc, but it is my understanding, or a t 

least it has been my experience, that, oral argument on appeals from 

decisions of the Commission is mandatory. It is always granted. I 

thin k you can waive it, but I don’t know of any instances in which 

it has been done in the years I have been practicing. To th at extent 

I don’t altogether agree-----

Air. AIoss. Do you think these matters should be considered by the 

full Commission rather than a panel of Commissioners or a single 

Commissioner ?

Air. Booth. We think that the oral argument should be held before the person making the review. If the full Commission is considering this case on review, the oral argument should be before 

them.

Air. AIoss. Then, it would not appear th at you are in disagreement 

with th at portion of the statement.

Air. Booth. No, sir. I think I agree with th e general principle, as 

I understand this statement. We think that the person considering
52 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

the review, wh eth er it is the full Com mission, a div isio n of C ommissioners, an indiv idu al Com missioner, an em ployee, or employee bo ard , 

whoever is conducting the review of the exceptions to the initial decision sho uld be the one to whom the oral arg um ent sho uld be pr esented.

Mr. Moss. And th at sh ould be m an da tory ?

Mr. Booth. We think th at sho uld be man da tory because actua lly 

it does no t tak e very much time. I th in k it wou ld be very he lpf ul.

Mr. Moss. Ha ve we had a re po rt of the tim e spent in the pa st ye ar 

or two in oral argu men t before the Commission ?

Mr. Younger. Yes; we have. In the origi nal tes tim ony of Mr. 

Mino w, when he was here he said the numb er of cases called to his 

attenti on am ounte d to about 1 week’s tim e to he ar all of th e ora l 

argum ent s.

Th e Chairm an. Of course, th at argu men t has been made by the 

gen tlema n fro m Califo rn ia before , an d it is in the rec ord now on a 

numb er of occasions. If it me ant the tim e consumed du ring the actual tim e th at you sit and listen to the ora l arg um ent th at wou ld be 

one th ing .

Mr. Y ounger. That is w hat I mean.

The Chairm an. But no Com mission er can sit and listen to an oral 

arg um ent in any case and do a job witho ut review ing t he reco rd and 

seeing wh at is in the record so when he hears the ora l argu men t he 

knows w ha t th ey ar e ta lk in g abou t.

I t is tim e consum ing, as the Ch air man of the Commission men ­

tion ed here yeste rday, in ha ving to go into all th at as an ind ividual 

Com mission er and taki ng the time to go th roug h these rec ord s and 

look t hem ove r so th at the y can t hen find ou t when the oral a rgum en t 

comes on w ha t it i t all abo ut, and listen to it.

Mr. Moss. Could we reques t the Com missioners to give us an ap ­

prox im ate figu re of the tim e involved in th e full proc ess of he aring 

ora l argu men t an d have it p laced in the record at this point.

Th e Chairm an. We will be glad to ask the Com mis sioner if they 

can do th at , bu t I migh t say to the gentlem an th at there is one case 

I can th in k of now down there th at h as been in oral argu men t abo ut 

5 years.

Mr. Moss. Ye s: I th in k we unc ove red a num ber, as I recall, in the 

Subco mm ittee on Le gis lative Oversight.

Mr. Y ounger. Would the gen tle ma n y ield ?

I th in k th at same po int was covered in Comm issio ner Lee’s testimony.

Mr. Moss. Comm issio ner Lee ma de a sta tem ent which wou ld in ­

dicate th at it was very minim al. T hat su rpris ed me because in recallin g the testim ony before the Sub com mittee on Le gis lat ive Ov ersig ht by mem bers of the Co mmission, it would seem to me that t hey i ndic ate d it was very dema nding and bog ged the Com mission down 

ra th er seriously.

Th e Chairm an. I wou ld like to say this fo r the record an d to r ecall the work of ou r comm ittee. In all of the cases, and there were 

23, I believe, majo r cases th at were boiled down to 17, before this 

Com mission th at we went into an d inv est iga ted du ring thes e last 3 

or yea rs, if the gen tlem an will rec all, and I believe T am correct, 

the th in g th at caused the gr ea t concern —Ro bert McMah on filed a
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 53

repo rt with this committee on it —in leaving it wide open was d uring 

the time of oral argument, this business of holding everything up 

continually so everything else can be done tha t one wants, and it seems 

to me that is something tha t should be met head on. You remember 

when one case was cited wherein i t was said rush down to Washington 

and put out the fire. Do you remember that ?

Mr. Moss. I do.

The Chairman. That was oral argument.

Mr. Moss. Air. Booth, you have indicated the need for very close 

cooperation between the Commission and the bar. Is it your judgment tha t in the absence of specific recommended language—you do 

not make the recommendation in specific language, but you state a 

specific objection at the bottom of page 2 as to the requirements of 

the persons who would be assigned to review panels. The Commission would conceivably assign such review work to persons less qualified than the examiner making the initial decision ?

Mr. Booth. I think it is conceivable. I would certainly hope they 

would not. As I recall, and again I am just going from memory, 

one of the Commissioners yesterday indicated tha t there were many 

matters which had to be studied as to how to implement this authority 

if given, and tha t they had not completely thought it through as to 

how they would implement this authority and delegation.

This Chairman. There was only one th at was brought up on that 

and tha t is tha t the Commission had not yet decided the method 

of how they would delegate certain functions, that is, to whom it 

would be delegated. They had not come to the conclusion yet. That 

was the only question that was le ft open in connection with their in ­

terpretation yesterday.

Mr. Booth. That is w hat I was re ferring to, and I think w hat we 

try to do is to go one step furth er.

Mr. Moss. I raise that point because I think at some point in this 

matter of considering legislation, we must have confidence in the 

Commission. After all, we have vested them with tremendous authority, indicating tha t we have confidence. It seems inconceivable 

to me th at they would undertake the assignment of persons less qualified than examiners to handle these review proceedings, but you think 

it would be quite necessary tha t it be made very clear ?

Mr. Booth. I think it should be made clear either in the statute 

or in the legislative history t hat this is the interpretation placed upon 

the delegation. I think it is a reasonable interpretation. I think 

they would probably come up with it, anyway, and I don’t think any 

harm is done by spelling it out.

Air. Moss. You made no comments on the matter of delegations to 

the Chairman of the Commission. Am I correct in recalling tha t 

your testimony before the Government Operations Committee did deal 

with tha t matter of delegations to the Chairman and his righ t to redelegate ?

Mr. B ooth. Yes, sir.

Mr. Moss. Have you resolved all of your doubts on tha t question ?

Mr. Booth. We have resolved some of our doubts on it in view of 

the specific language in H.R. 7333, and I think the other reason that I 

did not include i t in this statement or comment upon it in this statement is because it is not included, as I recall, in S. 2034.
54 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Moes. Then you do not o bject to the l anguage in II. R. 7333 ?

Mr. Booth. Xot to any g reat e xte nt, no.

Mr. Moss. Because, as I recall, this differs betwe en S . 2034 and H .R . 

7333 in the m atter of delega tion .

Mr. Booth. There is a difference in the two, yes, sir.

Mr. Moss. Bu t d o you subscribe t o ei ther?

Mr. B ooth. I think if the o ther pr oposa ls are adopte d t hat the delegat ion spelled out in H. R. 7333 would not cause a ny g re at am ount of 

difficulty.

Mr. Moss. I may have, in th e ra pi d read ing of yo ur sta tem ent, l>een 

left dang lin g, but in re fe rrin g to the abo lishin g of the review staff, 

you sta te no obje ctions, “p rovid ed its duties and person nel are rea ssign ed as th e asso ciation has recommen ded.”

Mr. Booth. Yes, sir.

Mr. Moss. I am tryi ng to recall the precise recommendations.

Mr. Booth. The recommenda tion s are the se: first of all, th at m any 

of the int erl ocuto ry matters and many of the reviews of initial decisions be handled by board s or employees and th at the ind ivi du als on 

the board s wou ld be he aring exa min ers. If th at is done, you do not 

need the review staff to advise them. These are experie nce d people. 

Th ey can do the job.

Second, if the Comm issio nrs are to assume the re sponsib ilit y f or prepa ring initial decisions, we thi nk t hat by giving them addition al pe rsonnel on th ei r staff, th eir s taff can do a real good job, and we sug gest 

that, the new members o f the Comm issio ners’ staff be o bta ine d fro m th e 

review staff, people who are exp erie nce d in wo rki ng on this, but they 

wou ld be responsible and be und er the gu idance of one p ar ticu la r Co mmissio ner rat he r tha n a pool o perat ion , as the y now are.

Mr. Moss. Do you think th is is a matter th at req uir es specific la nguage in the p rop ose d legisla tion, or one which the C omm issio ner can 

hand le at his d iscreti on if we act to ab olish t his staff?

Mr. Booth. Th ere may be specific leg islation req uir ed to autho rize 

the enla rge me nt of the Com mission ers’ staff.

As I recall the sta tute, and I am not certa in on this, does pro vid e 

fo r each Com missioner to hav e a lega l assis tan t and an eng ine ering 

assistant . W he ther the re need s to be legislation to enlar ge th at staf f, 

I ju st do no t know.

Mr. Moss. 1 would n ot th ink so. I f we abolish th at staff, I imagine 

it wou ld be reassig ned in the Commission. I th in k we should make 

certa in of that. That is all I have at the momen t, Mr. Ch airma n.

The Chairma n. I think probably, in taki ng up where Mr. Moss 

left off, the pla n con tem pla ted either by H.R . 7333 or S. 2034, and I 

might, s ay any othe r pro posal th at has been made, would abolish the 

review staff, but the present staff would lie ret ain ed withi n the Com ­

mission. Un de r the pro posal they would be assi gned in accordance 

with either the Commission itself in one pro posal, or th e Ch air ma n of 

the Commission un de r an othe r pro posal. Regardless of wh at mi gh t 

be done one way or the oth er, if the re is an ythi ng done, it is c ontempla ted th at the pre sen t review staff will be utilized by assign me nt to 

a pa rtic ul ar job th at w ould be ap pr op riate fo r th at ind ivi dual in con ­

nection with his work, wh ate ver sp ecialty it might be.

I do not see—maybe you can en lighte n me on it—how, b y le gislation, 

we can autho rize or dire ct th at certa in staff be employe d by each C ommissioner a nd b rin g abo ut the effective opera tion and efficiency wi thin
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 55

the agency that we should have. If it is not left flexible with the 

Commissioners, you might have a Commissioner that is utilizing the 

services of, say, a half dozen staff members today, and tomorrow he 

might need a dozen. Would you agree with tha t type of procedure 

or not ?

Mr. Booth. I th ink that the whole objective, the spirit of this legislation, is to provide flexibility in the Commission without telling them 

how to organize it.

The thing that we hope will not occur is that we go hack to the situation which existed before the McFarland Act amendments, where there 

was a professional opinion-writing staff which could make recommendations of an ex parte nature to the Commission. That is the biggest 

concern we have.

If the Commissioners are made responsible for the particular decision and the employees are responsible to the Commissioner as a 

member of his staff, surely they can advise the Commissioner. That 

is the purpose of having his own staff.

The Chairman. It is the ultimate objective of this committee to 

see that Commissioners are assigned responsibility for decisions. That 

does not mean th at they will individually write all those decisions— 

tha t would be impossible—hut t hat they will be responsible for the decision, and several of the Commissions already, as you know, have 

adopted that policy. Has the FCC adopted t hat policy?

Mr. Booth. No, sir.

The Chairman. Several of them have and it is working out, as I 

understand, quite satisfactorily and ultimately we hope to do that. 

I know the problems they had prio r to the McFarland amendments 

and something needed to he done then.

As a matter of fact, I think if we had had a good investigation 

during that time, there would have been something a whole lot better 

than the McFarland amendments. Some of them went too far, and 

for the last several years have hamstrung the Commission and pre ­

vented it from doing the job that the public demands. Tha t is p recisely what we are trying to do here with this legislation, and it is 

a whole lot harder to work out in the FCC than any other agency 

because of the highly restrictive amendments tha t were passed in 

1951.

You stated that you were somewhat familiar with the provisions of 

the proposed Commission bill, that is, as incorporated in S. 2034.

Under that bill, in your opinion, would the Commission designate 

Commission employees to hear exceptions from the examiner's findings, and decisions?

Mr. Booth. Yes, sir.

The Chairman. You specify, in your statement on page 2 in the 

last paragraph, that the reviewing personnel should he limited to 

persons who may conduct adjudicatory hearings. I might say th at I 

am impressed by this recommendation. T do not know just how it 

can be reached, but it seems to me that you have a very good point in 

asking that someone conduct the review that possesses at least the 

qualifications of an examiner who has heard the testimony and developed the record, rather than some employee with lesser qualifications. 

I do not think the Commission has any intention of assigning these 

ro employee boards comprised of clerks.
56 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Booth. I do not think so, either. I am quite certain they will 

not.

The Chairman. But you thin k t ha t there should be language that 

would assure that that would not be the case ?

Mr. Booth. I think so and I think it would improve the hearing 

examiner system and improve the overall operation of the adjudicatory process if it is spelled out.

The Chairman. Section 7 of the Administrative Procedure Act is 

applicable to presiding officers, hearing powers, evidence, the record, 

and so forth, but is not applicable to review. Is that your understanding ?

Mr. Booth. That is my understanding. We have not been faced 

with it so f ar because the review has always been by the full Commission.

The Chairman. I have the act here before me and it has to do with 

the taking of evidence and so forth . It has no reference to any review at all. I would assume from what you suggest here that the 

one approach to it would be to amend the Administrative Procedure 

Act to require the same type of personnel to hear reviews as you do in 

hearings proceedings. Is that what you have in mind ?

Mr. Booth. I do not know whether i t would be desirable to amend 

the Administrative Procedure Act because it is applicable to so many 

agencies, but I do believe that it could be spelled out in the amendment to the Communications Act.

I do not know how the other agencies are operating in the area 

of review, whether they are following similar procedures th at we have 

recommended or not. If they are, then there would be no need to 

spell it out in the APA.

The Chairman. What would be your thought with reference to 

a statement in the report to go along with what was intended in carrying out the provisions for the Commission?

Mr. Booth. I think tha t would probably be acceptable, sir, because legislative history is very important.

The Chairman. In other words, if the rep ort and the debates were 

to make it quite certain or quite obvious and definite that it was intended that these personnel boards for review purposes would be 

people th at possess special qualifications equal to the hearing officers’ 

or greater, then you think tha t that would be sufficient to meet the 

problem ?

Mr. B ooth. I personally think it would. I do not know how some 

of my fellow association members would feel.

The Chairman. I can see tha t it would be a little difficult to tell 

the Commission, “Now, this delegation you must assign to a man who 

has civil service status as GS-15,” or “GS-19,” or something like that. 

I do not think tha t tha t would be appropriate to include in this bill, 

but I do think it is a very good point and certainly the committee 

will consider it.

I want to get back to this rig ht of oral argument. The Interstate 

Commerce Commission has a procedure whereby the hearing officer 

will develop a record and render an in itial decision. As I understand 

the procedure, tha t will be filed within a certain time and if there 

are no exceptions or some action taken, it automatically goes into full 

force and effect; however, the individual in that proceeding has a right
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 57

to file exceptions. The exceptions under the present procedure, I 

think, go to whatever division has jurisdiction. Tha t panel has to pass 

on the exceptions. When the panel or that division passes on the exceptions, then there is a right of individual to request review by the 

Commission. I thin k under reorganization procedures now they go 

to the boards and so forth, and then they pass on it and the exceptions 

are filed. The panel then takes it up and if there is any appeal from 

that i t goes on, unless there are questions of national transportation 

importance involved. There has just been a sh ift within the Commission on that as to procedures.

Now, when a request is made for oral argument and review the 

Commission then has discretionary authority, as I understand it, to 

grant the oral argument, if it feels like it needs to have it. Do you 

practice before the Interstate Commerce Commission ?

Mr. Booth. No, sir, I don’t. I have only been down there two or 

three times in the last few years.

The Chairman. Have you ever heard among your fellow associates 

of the bar tha t there was any great injustice being done in tha t procedure ?

Mr. Booth. No, sir, I have not.

The Chairman. I s it not assumed that a member of the Commission, whether sitting as a panel or a full Commission, would at least 

do justice in the case and if an oral argument was desired and would 

be helpful it would be granted. However, if it was considered to be 

of no consequence or of no help to the Commission it would be denied ?

As a matter of practice and procedure, would tha t not be better?

Mr. Booth. I am not certain, sir, because the cases which are relatively unimportant that they would not want to take their time on, 

and by they, I mean the Commission or individual Commissioners, 

would be the cases which are delegated to the employee or employee 

board for review. Those individuals in making tha t review are 

going to have to study the record. They are going to spend some 

days on it, and we think that 15 or 20 minutes in those days of study 

would be very helpful to the parties and to the examiner, and we 

think that it should be a matter of right.

The Chairman. I very strongly support the principle of the party 

in the proceedings having his rights protected. I am equally as 

strong against someone who, just for the sake of postponing something, and stalling for time, clutters up the docket and causes what 

I think are inequities as far as the American people are concerned, 

through use of that opportunity. I started to say a right. It is 

not a righ t at all. However, I do know from information we have 

developed tha t there are certain types of people who hang around. 

I was told recently about certain people before a pa rticular Commission who would go to a case in hearing, sit back and listen to the 

thing as it developed and within this time find some way they could 

get into it. Then just get in for the purpose of injecting themselves 

m it for what they could get out of it.

I do not think tha t tha t ought to be permitted. Having an oral 

argument just for the sake of postponing the thing, to put things off 

where there is no real interest by that individual, is the thin g tha t I 

deplore.

Mr. Booth. If the request and if the proposal was to make mandatory the right of oral argument before the Commission, then it could
58 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

be used to bring about delays. However, if the oral argument is 

held by the person making the review I cannot conceivably see how 

these few minutes for oral argument would have any effect whatsoever upon delaying the ultimate disposition of the case.

At the present time, on a petition for rehearing under 405, it isnot unusual for the parties to request oral argument before the Commission. I do not know of a single instance in the last few years in 

which that oral argument has ever been granted, and we are not saying tha t there should be the right of oral argument at that time. I 

fully agree with you that that would bring about delays. We do not 

want to hamstring the Commission that way. We want to make it 

flexible. We want them to do the best job they can and as expeditiously as possible, and we think the right of oral argument for the 

person to present his argument, his summary or analysis of the case, 

to the person making the review and the righ t to have questions 

asked by the hearing examiner would be very helpful.

The Chairman. Then, I assume that you would recommend Senate 2034 with the two amendments th at you have suggested?

Mr. Booth. Yes, sir.

The Chairman. In preference to H.R. 7333 ?

Mr. Booth. Yes, sir, unless we in further study of S. 2034 have 

other recommendations. I do not think we will, but our study so far 

indicates that those are the two major amendments we would recommend.

The Chairman. Any further questions ?

Mr. Rogers.

Mr. Rogers of Texas. Air. Chairman, just one question. Mr. Booth, 

I am sorry I was late, but I have been getting quite a few telegrams 

from broadcasters in opposition to II.R. 7333. Ho you know anythin g about the source of those or why they are deeply alarmed 

about it?

Mr. Booth. No, sir, I do not know anything about the source. I 

would guess, if I could, and speaking perhaps as a broadcaster now, 

because I am one, that the concern with IT.R. 7333 is the same that 

they had with Reorganization Plan No. 2. I do not think they understand what the differences are in IT.R. 7333.

Mr. Rogers of Texas. Thank you, sir.

That is all, Mr. Chairman.

The Chairman. Are there any further questions ?

Air. Howze, do you have any questions ?

Air. Howze. No, sir.

The Chairman. Air. Younger?

Air. Y ounger. No questions.

The Chairman. Mr. Booth, thank you very much for your appearance here today and the contribution that you have made to this 

question.

I might say to the gentleman from Texas who raises the question 

about the broadcasters, I have a letter for the record tha t has just 

been submitted from the Honorable LeRov Collins, president of 

the National Association of Broadcasters, with reference to this 

proposal in which they suggest the Senate proposal, S. 2034. They 

support the objectives of these proposals, but they have reviewed the 

situation and they feel tha t the Commission recommendations would 

present a workable and acceptable plan. We have also from the
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 59

Columbia Broadcasting System a rather full discussion in a letter 

signed by a Mr. Thomas K. Fisher, vice president and general 

counsel, and Mr. Leon Brooks, assistant general attorney, in which 

the bill is analyzed and discussed, and I notice th at it says:

We sup port section 1 of H.R. 7333.

I do not know whether they support the rest of it or not. It is a 

rather lengthy letter with a full discussion. They suggest amendments on the pa rticular subject that Mr. Booth was discussing rega rding the assignment of the personnel. They suggest th at it be made by 

the majority of the members of the Commission holding office.

I would like, Mr. Clerk, to have copies of this made. I would like 

to commend it to the members of the committee because I think it 

would be very helpful in considering the problem, and this letter will 

also go into the record.

I have a statement from Mr. Lauren A. Colby. Mr. Colby is an 

attorney licensed to practice before the courts of New York State, the 

U S. District Court for the District of Columbia, and the U.S. Court 

of Appeals for the District of Columbia, and without objection, Mr. 

Colby’s statement will be included in the record.

(Documents referred to follo w:)

National Association of Broadcasters,

Washington, D.C. June lb, 1961. Re H.R. 7333.

Hon. Oren Harris,

Chairman, Special Subcommittee on Regulatory Agencies,

Comm ittee on Intersta te and Foreign Commerce,

House of Repre sentative s, Washington, D.C.

Dear Mr. Chairman : On behalf of the National Association of Broadcasters, 

I respectfully request that this letter be made a pa rt of the hea ring record on the 

above as an expression of the views of the hoard of dire ctors of this association.

This bill proposes revisions in the procedures of the Fed era l Communications 

Commission. The same broad objective of improved efficiency was included under 

Reorganization Plan No. 2, subm itted to the Congress on April 27 by the President, and by S. 2034 now pending before the Senate Commerce Committee.

With this broad objective we a re in accord, as we have indicated previously in 

a statem ent of position filed in the record on the Pre sident’s proposal. We 

reaffirm our feeling th at this subject should be dea lt with by legislative action 

ra th er than by Executive order.

The two pending legislative proposals (II.R. 7333 and S. 2034) have been 

carefully reviewed, and we are pleased to note th at the deleg atory fea tur es of 

Reorganization Plan No. 2 which met with very wide objection have not been 

carrie d forward in this proposed legislation.

S. 2034, according to o ur understanding, represents the “consensus” view of the 

FCC, and has been subm itted to your subcommittee by the Commission in its 

rep ort on H.R. 7333. This is the agency most affected, a nd its members should be 

most knowledgeable of its p roce dural needs. In our view, it prese nts a workable 

and acceptable plan.

Sincerely,

LeRoy Collins.

Columbia Broadcasting System, Inc.,

Washington, D.C., June 13, 1961. Hon. Oren Harris,

Chairman, Special Subcommittee on Regulatory Agencies, Inters tate and Foreign

Commerce Committee, House of Representatives, Washington, D.C.

Dear Mr. Chairman : This is with reference to H.R. 7333 which has been 

referred to the Committee on In terstate and Foreign Commerce and with respect to which hearings before th e Special Subcommittee on R egulatory Agencies 

have been scheduled for Jun e 13-15, 19G1. Columbia Broadc asting System, Inc.
60 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

is submitting to you herewith its views with respect to tha t bill and requests 

tha t they be made a p art of the record of the hearing thereon.

ELIM INATION OF THE EEVIEW STAFF

Section 1 of H.R. 7333 would repeal subsection (c ) of section 5 of the Communications Act. The effect of repeal would thus be to eliminate the special 

“review staff” created by that subsection. We believe that i t should be eliminated 

and its special functions abolished for the reasons set forth in the hearings on 

H. Res. 303 (to disapprove Reorganization Plan No. 2 of 19G1) before the Subcommittee on Executive and Legislative Reorganization of the House Committee 

on Government Operations. The limitations imposed by section 5(c ) of the act on the utiliza tion by the 

Commission of members of the review staff are unduly restric tive and are unnecessary. Section 5(c ) of the Administrative Procedure Act and section 40 9(c) 

of the Communications Act contain all the safegua rds required to assure against 

participa tion in the hearing process of Commission personnel engaged in presenting the case a t the hearing or otherwise involved in preparation of the case 

for hearing. If section 5(c ) of the Communications Act were repealed, the 

Commission could use its review staff as it saw fit, and would be free to consult 

with and ask help from all members of the staff not involved in the case under 

adjudication.

We support section 1 of H.R. 7333.

OPPORTUNITY BY PRIVATE PARTIES TO PARTICIPATE IN DELEGATION

Section 2 of H.R. 7333 would amend subsection (d ) of section 5 of the Communications Ac t1

 dealing with the assigning or referring of a portion or portions of the Commission’s work or functions to an individual Commissioner, or 

Commissioners, or to Commission staff. Under the amendment, the commission could do this only by published rule or order, subject to rescission by 

the vote of a majority less one of the members of the Commission then holding 

office. The amendment also provides tha t the requirements of paragraphs (a ), 

(b ), (c ), and (d ) of section 4 of the Administrative Procedure Act shall apply 

in the case of any such rule. Subsections (a ), (b ), (c ), and (d ) of section 4 of the Administr ative Procedure Act in general requires tha t a notice of proposed rulemaking be issued 

prior to promulgation of a rule and tha t an opportunity be afforded intereste d parties to partic ipate in the rulemaking through submission of writt en data 

or arguments. We do not believe tha t any useful purpose would be served 

by requiring an issuance of a notice of proposed rulemaking and the opportunity 

to be heard with respect to rules or orders delegating functions to Commissioners 

or Commission staff . This is a matter relating primarily to agency management or personnel, which is presently exempt from the notice and opportunity 

requirements of section 4 of the Administrative Procedure Act. Thus, the insertion of those requirements here appears to supersede tha t provision with resix>ct to rules or orders of delegation. We suggest tha t the sentence: “The requirements of paragra phs (a ), (b ), (c ), and (d ) of section 4 of the Administrative Procedure Act shall apply in the case ony any such rule.” be deleted from 

subsection (d ) (1 ) of section 5 as proposed in H. R. 7333.

DISCRETIONARY REVIEW BY TH E CO MM ISS ION

Subsection 5 (d ) (3 ) as proposed in H.R. 7333 makes it discretionary with the 

Commission whether or not to review any order, report, or action issued or taken 

under a delegation of auth ority and provides that the vote of a majority less one of the members of the Commission then holding office shall be sufficient to bring 

any such order, decision, report or other action before the Commission for review. This provision is similar to tha t contained in Reorganization Plan No. 2.

We believe that the fact tha t three Commissioners, or a majority less one, 

may require review by the Commission affords protection to parties, so long, 

however, as in cases of adjudica tion parti es are assured the right to file exceptions and to oral argument before an interme diate appellate body, or before the

1

 S ince H.R . 7333 prop oses to de le te see. 5 (c ) of th e ac t. sec. 5 (d ), wh ich is pr op os ed to 

am en d, sh ou ld be re de sign at ed as “5 (c )” an d sec. 5 (e ) of th e a ct sh ou ld be re de si gn at ed 

as “5 (d ).”
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 61

Commission when review before the full Commission is granted. We will comment further on these qualifications when we discuss the proposed amendment 

to section 4 09 (b ) of the Communications Act.

AS SIGN ME NT OF PER SONNEL BY THE CH AIR MA N

Subsection 5 (d )( 4 ) as proposed in H.R. 733 gran ts the Chairman the sole 

authority to assign Commission personnel, exclusive of members of the Commission, to perform such functions as may be delegated by the Commission. 

This varies from Reorganization Plan No. 2 in tha t it does not permit the Chairman to assign delegated functions to other Commissioners.

At the hearings on the reorganization plan referr ed to above, the fear was 

expressed tha t the Chairman, under such provision, could assign work to personnel who had been permanently assigned to the offices of the individual Commissioners ; for example, the Commissioners’ legal a ssistants, engineering a ssistants, or admi nistrative assistants. We do not know the extent to which this 

might become a problem, but suggest tha t if the Commissioners believe tha t it 

might eventuate as a problem, the phrase “exclusive of members of the Commission” in proposed subsection 5 (d ) (4 ) be expanded to read “exclusive of 

members of the Commission and of personnel permanently assigned to the staffs 

of such members.” Fea r has also been expressed tha t delegating to the Chairman the powrer to 

assign Commission personnel to perform delegated functions constitutes a grant 

of too much power to the Chairman. Apparently for tha t reason H.R. 7333, in 

proposed subsection 5 (d )( 1 ), provides that any rule or order of delegation may 

be rescinded by a vote of a majority less one of the members of the Commission then holding office. However, it would appear th at once the Chairman has assigned a member 

of the staff or a panel of the staff to a case pursuant to an order of delegation by the Commission under which the Chairman is authorized to assign personnel for a class of cases in which such case falls, the rescission of the order 

of delegation may not affect such assignment, for the assignment would have 

been made under an order validly issued. The rescission of t he order affecting 

the delegation would serve only to prevent fut ure assignments in the class of 

cases theretofore covered by the delegation.

Also, i t would not he conducive to good administration to require public manifestation of the displeasure of three or more Commissioners of the Chairman’s 

selection of personnel to perform delegated functions; this, too, might be a 

significant factor in inducing the Commissioners not to vote to rescind despite 

their disagreement.

We suggest tha t there be added a provision t ha t the assignment by the Chairman of Commission personnel to perform a delegated function or functions shall 

he subject to the consent or approval of the majority of the Commission. Thus, 

the Chairman would require but three other Commissioners to approve his selection ; four Commissioners would have a veto power over the Chairman’s choice. 

The Chairman would still retain considerable authority in this area since, by 

reason of his responsibility to initiate all assignments, he would have a veto 

power over the selection of personnel to perform delegated functions.

Accordingly, it is recommended tha t there be inserted in proposed section 

5 (d )( 4 ) of H.R. 7333, at the end thereof, the clause: “each such assignment to 

be subject to the approval of the majority of the members of the Commission 

then holding office.”

EXCEPTIONS AND ORAL ARGUM ENT

Section 4 09 (b) of the act provides tha t in every case of adjudication which 

has been designated for hearing, the Commission shall permit the filing of exceptions 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. 

This right to file exceptions to and have oral argument on an initial decision has 

been deleted from section 40 9(b) as it would be amended by section 3 of 

H.R. 7333. Although, as th e a ct would be amended by H.R. 7333, review of an initia l decision is discretionary with the Commission, we are of th e opinion that a t the least, 

when the Commission does decide to exercise its discretion in favor of review, 

the right to file exceptions and to oral argument should be afforded interested
62 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

part ie s. 2

 The se are ve ry im port ant ri g h ts ge ne ra lly reco gn ized in ju dic ia l pr oceedings. The y are no t on ly ess en tial to th e p a rt ie s; th ey a re of in va lu ab le 

as si st ance to th e Co mm ission .

Ana log y to th e dis cr et io nar y as pe ct of th e ri g h t of revi ew by th e fti ll Commiss ion to U.S. Su pr em e C ou rt pr oc ed ure has of te n been ci te d as ju st if ic at io n 

fo r m ak in g review by th e Com miss ion dis cr et io nar y. B ut it sh ou ld be no ted 

th a t whe n th a t C ou rt g ra nts a pet itio n fo r cert io ra ri or re vi ew , it gen er al ly a ffo rd s th e ri ght to file br ie fs an d to ora l ar gum en t. We th in k th e sa m e pr oc edure sh ou ld be follo we d he re. Thu s, we rec om men d th a t th e fo llow in g se nt en ce 

be incl ud ed in se ction 40 9( b) as pr op os ed in th e b il l:

“In an y ca se w he re th e Co mmiss ion has de cid ed to review an in it ia l de cision 

unde r se ction 5 (d ) (3 ), th e Co mm iss ion sh al l perm it th e fili ng of ex ce pt io ns by 

an y p art y to th e pr oc ee ding an d sh al l up on re qu es t h ear ora l ar gum ent on su ch 

ex ce pt io ns .”

T H E B IG H T TO AT LEAST ONE RE VI EW

D ur in g heari ngs on R eo rg an iz at io n P la n No. 2, th e vie w w as ex pr es se d th a t 

in ev er y ca se of ad ju dic ati on de cide d by a heari ng offic er th ere ou gh t to he a t 

le ast on e review of his de cis ion. It is cl ea r th a t one of th e pu rp os es of th e re ­

org an iz at io n pl an , as well a s of II.R . 7333. is to re lie ve th e fu ll Co mmiss ion of 

th e bu rd en of list en in g to ora l ar gum en t, re ad in g th e ex ce pt ions , and w ri ti ng a 

de cision in ev er y ca se of ad ju dic ati on, ho w ev er minor, am i ho w ev er it may app ear on in it ia l ex am in at io n th a t th e h eari ng office r’s d ec isi on w as c orr ec t. lien ee 

th e s ug ge stion ha s been m ad e th a t som e in te rm edia te a ppel la te g ro up be se t u p by 

th e Co mmiss ion comp osed of Com miss ion st af f mem be rs or per hap s, in mor e im ­

port ant ca se s, a pa ne l of Com mission ers, p u rs u an t to th e au th o ri ty to de le ga te 

co nt ai ne d in s ec tion 5 o f th e a ct . We su bs cr ib e to t h a t view.

Th us , all p art ie s wou ld ha ve th e ri g h t to a t le ast on e review by an ap pel la te 

body, w ith th e co nc om itan t ri ght to file ex ce pt ions an d hav e ora l ar gum en t, of 

th e de cision of th e hea ri ng officer. T he ri ght to review be fo re th e fu ll Commission wou ld st il l be dis cr et io nar y. W e su bm it th a t if su ch a pro ce du re is se t 

up in th e ac t, th e nu m be r of ca se s in whi ch th e fu ll Co mm iss ion wou ld feel im ­

pe lle d to ex er ci se its review au th o ri ty in ord er to co rr ec t err o rs in th e in it ia l 

de cision , wou ld he co ns id er ab ly les sene d. Sim ilar ly , th e nu m ber of ca se s in 

whi ch th e Co mm iss ion wo uld be re ve rs ed by a revi ew in g court fo r a de cision of a 

heari ng officer not review ed by th e fu ll Co mm iss ion m ay also be de cr ea se d.

Acc ording ly, we urg e th e su bc om m itte e to in clud e in th e bill a re quir em en t 

th a t su ch an in te rm ed ia te ap pel la te re vi ew in g body be cr ea te d by th e Co mm issi on to re vi ew ca se s of ad ju dic ati on no t review ed dir ec tly by th e fu ll Co mm issio n, w ith th e ri ght to th e p art ie s to file ex ce pt io ns w ith an d ha ve o ra l ar gum en t 

lief or e s uc h bod y.

0FF-THE-BEC0RD PRESE NTATIONS IN CASES OF ADJUDICATION

In it s prop os ed am en dm en t to se ction 409 (c ) of th e ac t, H.R . 7333 om its th e 

re quir em ent no w in se ction 409 (c ) (2 ), th a t in an y ca se of adju dic ati on no per ­

son wh o has part ic ip ate d in th e pre se nta ti on or pre para ti on fo r pre se nta tion 

of a ca se be fore a heari ng officer, an d no mem be r of th e Office of th e G en er al 

Co un sel, th e Office of th e C hi ef Eng in ee r, or th e Office of th e Chi ef A cc ou ntan t, 

sh al l dir ec tly or in di re ct ly m ak e an y addit io nal pre se nta tion re sp ec ting such 

ca se, un le ss up on no tic e an d opport unity fo r al l p art ie s to part ic ip ate . We ar e 

in ag re em en t th a t th a t po rt io n of se ction 409 (c ) (2 ) which pro hib it s th e Commission fr om se ek ing ad vice fr om th e Office of G en eral Co un sel, th e Office of 

th e C hi ef Eng in ee r, or th e Office of th e C hi ef A cc ou ntan t, se rv es no us ef ul 

pu rp os e w he re mem be rs of th os e offices ha ve not part ic ip ate d in th e p re se n ta ­

tion of th e case. In fa ct , it appears to de pr iv e th e Co mm iss ion of th e op po rtu n it y to be ne fit from th e co ns id er ab le exper ti se of th e Co mmiss ion’s staf f. 

W e ag re e th a t th a t po rtio n of se ct ion 40 9( c) (2 ) shou ld be de let ed . How ev er, 

we be lie ve th a t th at po rtio n of pre se nt se ction 4 0 9 (c )( 2 ) which pro hib its p erso ns who ha ve part ic ip ate d in th e pre se nta ti on of th e ca se fr om dir ec tly or 

in dir ectl y m ak in g an y pre se nta ti on unl es s up on no tice or opport unity fo r al l 

p art ie s to part ic ip ate sh ou ld be re ta in ed in th e ac t, w het her or no t th is pro ­

vision is deem ed to ap ply on ly to outs id ers or w het her it ap pl ie s al so to Com2

 I t can he ar gued th a t sec. 8(b ) of th e A dm in is tr at iv e Pro ce dur e Ac t wo uld afford th e ri g h t to file ex ce pt io ns if th e Co mmiss ion sh ou ld decid e to ex ercise it s review auth ori ty . How ev er th is is not c le a r; andi it cl ea rl y does not includ e th e ri g h t to ha ve or al argu ment.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 63

mission personnel, such as the attorneys of the Broadcast Bureau who represent the Commission and the public in the hearings. Under that provision the 

present practice of the Commission’s hearing attorneys is to file its exceptions, 

motions, etc., on the record and serve copies on the other parties to the proceedings so tha t they may have an opportunity to reply. This practice should 

continue. We are concerned that if the subject provision is deleted, it may be 

contended tha t such practice is no longer required and tha t the Commission 

staff member who has participated in the hearing, in effect as a party, need 

no longer make his views, proposals, or recommendations on the record.

We note tha t section 409(c) as proposed in H.R. 7333 retains the provision 

of the present section 409 (c)(3) to the effect tha t no person engaged in the 

performance of investigative or prosecuting functions for the Commission, or 

in any litigation before any court in any case arising under this act, shall advise, 

consult, or participate in any case of adjudication designated for hearing, except 

as witness or counsel in public proceedings. We believe th at this provision is 

broader than is necessary to protect the parties in a hearing and in par t negates 

what H.R. 7333 proposes to do in eliminating the requirement tha t the Commission may not seek advice from the Office of General Counsel, since t ha t office 

handles litigation for the Commission and performs most of its prosecuting functions, as well as many of its investigative functions. We think it sufficient 

that persons engaged in the performance of investigative or prosecuting functions 

for the Commission or in any litigation be disqualified from counseling with the 

Commission off the record only in those cases which they investigated or litigated, or in factually related cases. This would then be consistent with the 

other provisions of the act disqualifying all those who participated in the presentation of the case from communicating with the Commission off the record 

and with section 5(c) of the Administrative Procedure Act.

Accordingly, we recommend tha t there be added to proposed section 409(c) 

of H.R. 7333 the following: “and no person who has participated in the presentation or preparation for presentation of such case before an officer conducting the hearing or the Commission, or who has engaged in the performance 

of investigative or prosecuting functions for the Commission, or in any litigation before any court, in connection with such case or a factually related case, 

shall directly or indirectly make any additional presentation respecting such 

case, unless upon notice or opportunity for all parties to partic ipate.”

We wish to express our thanks to the subcommittee for this opportunity to 

submit our views with respect to H.R. 7333.

Respectfully submitted.

Columbia Broadcasting System, Inc., 

Thomas K. Fisher,

Vice President and General Counsel.

Leon R. Brooks,

Assistan t General Attorn ey.

Statement of Lauren A. Colby With Respect to H.R. 7333

(1) I am an attorney, licensed to practice before the courts of the State of 

New York, the U.S. District Court for the District of Columbia, and the U.S. 

Court of Appeals for the District of Columbia. For 2 years, I was a member of 

the staff of the Federal Communications Commission, and for the past 4 years I 

have been actively engaged in the private practice of law before the FCC and 

other agencies. For the following reasons, I am opposed to the provisions of 

H.R. 7333, in the present form.

(2) Section 409(b) of the Communications Act presently provides, in substance 

tha t in hearing cases before the FCC, the examiner conducting the hearing shall 

prepare and file an initial decision and “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 * ♦ * .” Among other things, H.R. 7333 would amend the Communications Act to eliminate the right to file exceptions, and to substitute instead a 

procedure whereby aggrieved parties may petition the Commission for a discretionary review of the initial decision of a hearing examiner. H.R. 7333 makes 

no provision, however, for any right of oral argument before the Commission en 

banc, or even before the examiner.
64 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

(3 ) The right of oral argument is a particularly valuable one, since it offers 

virtua lly the only opportunity for two-way contact between counsel and judge. 

Unlike the filing of pleadings, which allows only one-way communication—from 

the litig ant to the court or agency—oral argument allows the members of the 

agency to ask questions of the litigant, and permits counsel to discover and to 

try to answer possible objections to his argument, which may not have been raised 

in the written pleadings in the case. Many times the questioning of counsel by 

the court or agency will call counsel’s atten tion to points which may have been 

previously overlooked, or will focus atten tion on points which the questioner 

believes to be particularly important. Manifestly, the proper admin istration 

of justice is served by affording a n opportunity for such points to be raised in 

open court, where they can be answered by counsel. In- this way, litiga nts are 

enabled to make the best possible pres entation of their cases, and the agency has 

the benefit of a complete exchange of views by all parties, on all the factors 

which it considers rele vant and material.

(4 ) In courts of law, the right to oral argument is basic, at all the various 

stages of a case. In the tria l of a lawsuit, for example, the parties are afforded 

oral argument on the different motions—such as the motion fo r a directed verdict ; oral argument before the jury, in summ ation; and oral argument on appeal, before the appellate tribunals. Unfortunately, there is normally no comparable righ t to oral argument on the whole case in proceedings before FCC 

hearing examiners—notwithstanding the fact tha t proceedings before the Commission oftentimes involve franchises worth many times the amount which is at 

stake in most lawsuits. Consequently, the oral argument before the Commission en banc is the only oral argument normally allowed to counsel, on the whole 

of his case.

(5 ) For the above reasons, it is respectfully submitted tha t the right of oral 

argument, presently afforded by section 409 of the Communications Act, should 

not be abolished. If, however, the committee is nonetheless disposed to recom­ mend some change in the statut e, it is submitted that, at a minimum, oral argument should be perm itted on any applications for review of the decisions of h earing examiners. This could be accomplished by revising page 3, lines 1-5 of H.R. 

7333, to read as follows:

“ (3 ) Any person aggrieved by any such order, decision, report, or o ther action 

may, within such time and in such manner as the Commission shall by rule prescribe, make application for review by the Commission. After affording an opportu nity for oral argument, the Commission shall pass upon every such application ; and * * * ”

(6 ) The retention of the right of oral argument should not place an undue 

burden on the Commission. The Commission holds only about GO oral arguments 

per year.1

 These oral arguments run about an hour in length, and the Commission makes it a practice to generally schedule more tha n one argument on any pa rticular day. Thus, there are probably less than 30 days a year in which the 

Commission sits for oral argument. By way of comparison, the Supreme Court 

of the United States held oral arguments on 148 cases at its 19G0 term, and the 

Justic es themselves were required to write decisions in each of these cases, 

whereas Commission decisions are normally writte n by the staff.

The Chairman. There is one additional witness to be heard tomorrow.

The committee will adjourn until 10 o’clock tomorrow morning.

(Whereupon, at 11:25 a.m., the committee recessed, to reconvene 

at 10 a.m., Thursday, June 15,1961.)

1

 Report of hearings before Subcommittee on Government Operation, Mav 18 and 19 1961, p. 144.
FED ERAL COMMUN ICAT IONS COMMISSION

REORGANIZ ATION

TH U R SD A Y , JU N E 15 , 19 61

H ouse of Repr ese ntatives,

S pecial S ubcomm itt ee on Regulatory Agencies

of the Com mittee on I nterstate and F oreign Commerce,

Washington, D.G.

The committee met at 10 a.m., pursuant to recess, in room 1334, New 

House Office Building.

Pres ent: Representatives Harris (presiding), Rogers of Texas, 

Moss, Rogers of Flor ida, Bennett of Michigan, Springer, Younger, 

and Hemphill.

Also present: Ku rt Borchardt, professional staff member; Allen II. 

Perley, legislative counsel, House of Representatives; Charles P. 

Howze, J r., subcommittee chief counsel; Rex Sparger, subcommittee 

special assistant; and Herman Clay Beasley, subcommittee clerk.

Mr. R ogers of Texas (presiding) The subcommittee will come to 

order for the fu rther consideration of H.R. 7333.

Our witness this morning is Mr. Leonard H. Marks, a Washington 

attorney.

Mr. Marks, you do not have a written statement as I understand it.

STATEMENT OF LEONARD H. MARKS, ATTORNEY, WASHINGTON, D.C.

Mr. Marks'. That is right, Mr. Chairman.

Mr. R ogers of Texas. You may proceed, Mr. Marks, with your 

oral statement.

Mr. Marks. Thank you.

Mr Chairman and Mr. Moss, I appreciate the opportunity of appearing before you and presenting my views on H.R. 7333"and the 

problems which it was designed to eliminate.

I regret tha t I was out of the city the early pa rt of this week and 

therefore unable to appear when you heard the other witnesses.

H.R. 7333 is designed to prevent delays in the processing of applications in the conduct of the business of the Federal Communications Commission. Considerable testimony has previously been offered, both to this committee and to the Senate, on what causes the 

delays before the Federal Communications Commission.

I speak from 20 years of experience as a member of the Commission 

staff and as a practicing attorney specializing in communications 

matters. I was formerly president of the Federal Communications 

Bar Association and 2 years ago we realized tha t substantial delays 

were causing considerable detriment to the industry and to the public 

and Mr. Booth, the present president of the bar association, has told
66 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

this committee and the Senate committee that, as a result of the efforts 

during my administration, a special group was organized, members 

of the Commission's staff, lawyers and engineers, to try to avoid 

delays. Work was carried on over a year. Reports have been filed 

with the Commission but unfortunately at this stage no definite action 

has been taken as a result of those studies.

This is a problem tha t has permeated all administrative agencies 

and courts.

Several years ago I had the privilege of appearing at a meeting of 

bar association presidents. One hundred and fifty men throughout 

the country were selected and we invited Lord Goddard of England, 

the chancellor of the ir courts, to address us and to sit with us and discuss the problems of delay.

As a result of tha t we came to th e conclusion tha t each agency or 

each court has its own unique problems and there is no one cure-all 

which will eliminate delays in the processing of applications or the 

conduct of hearings or the disposition of appeals.

I want to focus my attention specifically on the Federal Communications Committee with the thought in mind tha t it has its own peculiar problems.

The testimony which has l>een introduced during the past several 

weeks on H.R. 7333 and companion reorganization bills has dealt 

solely and exclusively with the problem of hearings.

The Chairm an of the Commission and members of the Commission 

have told you the amount of time consumed in listening to hearing 

cases and that, if they could delegate the responsibility of these hearing cases to panels, a great deal of time would be saved.

I would like to talk about the work of the Commission in the nonhearing field.

The average week of the Commissioner is taken up, 75 percent of the 

time I would estimate, by the study of routine matters that do not in ­

volve a hearing. For example, Mr. A. has a radio station. He wants, 

to increase his power from 250 watts to 1,000 watts. That application 

is studied by the engineers. It is studied by the accountants. It is 

studied by the lawyers. There is no objection to it. There is no interference. There is no party aggrieved. There is no complaint. What 

happens? Those reports are mimeographed and distributed to all 

Commissioners and their assistants. Once a week the Commission 

meets in a hearing. A member of the staff gets up and repeats what is 

in the report. Fifteen or twenty minutes of time is taken up and the 

Commission routinely says “Granted.’’ They have no alternative. The 

law says th at, if certain regulations are complied with, the application must be granted. Yet the weekly agenda of cases such as I have 

just described takes up one or two days of the Commissioner’s time 

in Commission meetings alone.

In addition to that, this constitutes the principal homework of the 

Commissioner. He receives a stack of papers fully 3 or 4 inches high 

each week and in each case it is a routine administrative decision that 

has been made for him by the Commission’s staff. This includes the 

moving of a radio station location from site “A” to site “R’’; the transfer of a radio station from one owner to another; increases in power; 

and the myriad of applications in not only the broadcast field but the 

common carrier field, the safety and special services field.
FED ERA L COMM UNICA TIO NS COMM ISSION REO RGANIZA TION 67

It is possible for the Commission under existing legislation to delegate tha t work today. By a simple administrative order the Commission could say :

All no nc on tested ca ses, al l no nc on te sted ap plica tions are he re by de le ga te d to 

th e C hi ef of th e B ro ad ca st B ure au , th e Chief of th e Co mm on C arr ie r B ure au , 

an d th e C hi ef of th e S af et y a nd Sp ec ial Se rvices B ur ea u.

Instead of applications being held up for a full week or 2 weeks 

until the Commissioners can meet and put their rubberstamp on it, 

the Chief of the Bureau could work every day processing these cases 

and tremendous amounts of time would be saved and delays avoided.

Now, 1 do not believe that the Commissioners want to delegate this 

responsibility and I do not say this critically. I say it objectively. 

Perhaps there is some value in seeing the individual when lie comes 

to Washington afte r his case has been pending for 18 months and 

he calls on a Commissioner and says:

My ap pl ic at io n to mo ve from si te A to si te B h as been on file fo r 18 mon th s. 

C an ’t yo u do so m ethi ng about it?

And the Commissioner then interests himself and perhaps may make 

a phone call and try to move it along. But that is not the value of 

administrative process. It is not necessary for the Commissioner to 

take off his time to see the owner of a radio station and spend the time 

checking on where tha t application is. This should be a function of 

the staff if there is no contest. If my suggestion is followed, the Commission will be transformed into an appellate board which is, I think, 

the principal function tha t any administrative agency should perform; and here are the methods that I would use to arrive at tha t 

result.

One, I would like to see this committee in its report amend II.R. 

7333 by providing for the appointment of an A dministrator appointed 

by the President, subject to the confirmation of the Senate, to hold a 

term of office for the same period of time as a Commissioner. The 

Adm inistrator’s job would be to act on all noncontested applications 

such as I have described. Any matter on which there is no protest, 

no complaint, no interference, would be acted on by the Administrator. If a pa rty was aggrieved by the action of the Administrator, 

he could appeal to the seven Commissioners. If an application involved interference or if there was a complaint or if there was a 

deficiency, the Adm inistrator would set it for a hearing. It would 

go to a hearing examiner. Decisions of the hearing examiners would 

lie appealed to the fu ll Commission. Decisions of the Administrator, 

if there could lie any complaint, would be appealed to the full Commission. This would make the FCC, the seven Commissioners, into 

an appeals board rather than an agency devoting a substantial amount 

of its time to consideration of noncontested routine matters. That is 

the recommendation tha t I would like to see you make.

Now, failing that, if the legislation is not amended to include the 

Office of Administrator, I would like to sec in the committee report 

a recommendation to the Commission that, under existing law, it 

delegate to the chiefs of the respective bureaus the functions which I 

have just described. It can be done without the passage of any additional legislation. If this takes place and if II.R. 7333 is put into 

effect with respect to hearing cases, I believe we will have substan-
68 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

tially avoided the long delays tha t have taken place at the present 

time before the FCC.

Mr. R ogers of Texas. Mr. Marks, I do not want to interrupt your 

train of thought but why do you thin k the Commission wants to 

retain the opportunity to do this visiting in the noncontested cases?

Mr. Marks. I thin k it is human nature, Mr. Chairman, to be able 

to visit with the constituents and discuss their local problems with 

them. It may not be the most efficient way of getting the business 

done but it is one way of keeping close touch with the industry and 

perhaps making your constituents realize that the functions tha t you 

do perform are in their best interests.

Mr. R ogers of Texas. I do not understand their thinking since they 

do not have to run fo r those offices.

Mr. Marks. Neither can I but I have informally discussed this with 

many Commissioners over the years. They say :

You are pr ob ab ly righ t. I t is mor e efficient fo r you to do it th is w ay bu t it 

is good fo r us to ke ep in to uc h w ith th e in dust ry an d ke ep in touc h w ith th eir 

prob lems.

Mr. Rogers of Texas. Of course, wTe have to recognize the fact that 

these boards and bureaus are not set up for visiting purposes. If 

they are going to do that, we had better divide visiting and business 

hours like we do in some eleemosynary institutions.

With regard to the delegation of authority, you have stated, that 

they presently have that authority. Tha t authority is limited to nonadjudicatory cases and it would require an amendment to section 

5(c), would it not, to authorize delegation of the adjudicatory cases 

to an adm inistrator ?

Mr. Marks. Mr. Chairman, let me make a distinction and define 

the word “adjudicatory.” If two people seek the allocation of a 

radio frequency, you have an adjudicatory matter which must go to 

to a hearing examiner. That is the present procedure under the Administrative Procedure Act.

An appeal from the hearing examiner would lie to the full Commission or to a review panel. That would require legislation; yes. You 

may also call a matter adjudicatory where there is no other party 

than the applicant. If you are using the term in th at sense, the present Communications Act would permit the Commission to delegate 

to the Chairman of the Broadcast Bureau the righ t to grant an uncontested application, the right to the Chief of the Common C arrier 

Bureau the same power in his own field, but I would prefer an administrator who would act on all noncontested matters whether in the 

broadcast field, the common carrier field, or the safety and special 

services field.

I believe that, if the Commission delegated responsibilities pending 

legislation, if there should be a delay beyond this session, it would 

be a step in the right direction; but ultimately I favor an administrator appointed by the President, subject to confirmation by the Senate, 

who would be more than a staff official subject to the orders of the 

Commission or the chairman, who would have the discretionary power 

to say, “This application has no problems. I grant it.” Or, “ It does 

have a problem. I set it for hearing.”

Mr. Rogers of Texas. You would not go so far as to say th at you 

are changing the thinking of adjudicatory and nonadjudicatory over 

into the category of contested and noncontested ?
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 69

Mr. AIarks. T would divide it into contested and uncontested and 

I would make that the dividing line so that the Commission would 

only lx* called upon to review contested matters. I see no reason for 

the Commission to review a noncontested matter.' That is the principal work of the Commission.

Mr. Rogers of Texas. Yes.

I yield to Mr. Moss.

Mr. Moss I am interested, Mr. Marks, in your recommendation 

that we create an administrator and then your further elaboration 

as to the method of selection and the powers that would be vested in 

this office of administrator.

Now, I understand you would have him appointed by the Pres ident for a set term.

Mr. Marks. Tha t is rig ht, sir.

Mr. Moss. Confirmed bv the Senate.

Mr. Marks. Right.

Mr. Moss. And he would make the determinations as to whether or 

not a matter was to be assigned for administrative decision or considered by the Commission ?

Mr. Marks. No, sir ; Mr. Moss. If there were no objections to an 

application, he would grant it. If there were objections, he would 

set it for hearing before a hearing examiner.

Mr. Moss. Then you would be delegating to him much of the 

powers of the present Commission?

Mr. Marks. On noncontested matters.

Air. Moss. It would be a radical change in the present setup of the 

independent agency.

Air. AIarks. No, sir. I do not think it would be a radical change. 

At the present time you have delegations of many noncontested matters to the staff.

Mr. AIoss. Mr. Marks, as I recall, one of the strongest objections 

voiced to Reorganization Plan No. 2, both before this subcommittee 

and before the Committee on Government Operations, was the charge 

tha t the delegations which would be permitted to the commission— 

and remember, here is a case where the commission would delegate 

to the chairman for redelegation to staff or Commissioners—would 

impair the independence of the agency. I did not accept that as having any validity whatsoever because the commission clearly retained 

the righ t to descind any delegation.

However, if we were, by statute, to create this office of administra tor responsible only to the President and he would be a presidential appointee and we would give him the right to make all of 

these administrative determinations, then I believe tha t we would 

have in fact impaired the independence of the agency to a very substantial degree because the Commission would not retain any right to 

rescind any delegation. It would be an absolute delegation by law.

Air. AIarks. Air. AIoss, I would like to disagree with you for the 

following reasons: No. 1, any action of the Administrator would 

be subject to appeal to the seven Commissioners who could reverse it.

Air. AIoss. Let us look at that. You are talking of noncontested 

matters where it is almost routine tha t a grant will be made.

Air. AIarks. Right.

Air. AIoss. Who is going to appeal?
70 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Air. Marks. Let us suppose tha t an application is on file for a 

change in location of a radio station from site A to site B. There is 

no intervening party. There is no interference and the Administra tor grants it.

Mr. Moss. Let us identify an intervening part in tha t instance.

Mr. Marks. Let us say another radio station tha t might suffer interference.

Mr. Moss. Is tha t the limit of parties who might be intervening?

Mr. Marks. No, there might be the neighborhood zoning commission which feels tha t the location of the radio station in the new 

place would cause a problem as far as housing or it may be a d etriment to the expansion of tha t area as a commercial location. There 

are many people who might have interests.

Mr. Moss. Alight it be a Member of Congress who felt tha t the 

change in location would impair, to some extent, the possibility of 

his community at a future date getting another channel ?

Air. Marks. Right.

Mr. Moss. A You Id he be a proper party of interest in a m atter of 

this type?

Mr. Marks. I would not call those parties interveners in the legal 

sense but they would be interested parties.

Let us suppose they made no objection and the application was reviewed by the engineers and found to be complete. The administrator 

would grant it just as the Federal Communications Commission would 

gra nt it, the seven men.

Mr. Afoss. Air. AIarks, would we not preserve the independence of 

the agency by suggesting tha t it wisely delegate under existing 

authority. I believe t hat section 5(d) is sufficiently broad to permit 

the delegation you feel desirable, and yet to retain in the Commission 

the power to review not only a specific case but the overall exercise of 

the delegated authority by those to whom it is delegated. A wise 

delegation here would just as effectively accomplish your objectives 

as the creation of an additional position in the Commission would, 

would it not?

Air. Marks. You are right, sir. The same objectives would be 

created. We differ only as to the procedure and I would be very 

satisfied and I believe the industry would be benefited and the public 

would be benefited if the delegation took place under existing legislation ; but I believe it is going to take a mandate from your committee 

to make this change possible.

Mr. AIoss. To make it possible?

Air. AIarks. To order it.

Air. Moss. Because it is possible now.

Mr. Marks. I should not say “make it possible,” but to bring i t into 

effect.

I think that your committee is going to have to tell the Commission 

in a report tha t this is a wise delegation.

Mr. Moss. Suppose t hat we can, by suggestion or mandate, create 

wise Commissioners. If this is a wise proposal, and I agree with you 

that it is, are we going to accomplish this act of wisdom by suggesting 

to men who are so socially inclined t hat they want to visit?

Mr. Marks. If they will not take a recommendation of your committee, then it requires legislation. It does not have to be by an
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 71

Administrator. You would write into II.R. 7333 the same provisions 

without an administrator.

Mr. Moss. If th at is the case, they are only going to do exactly that 

which is required by the language we insert and we are still not going 

to get the most efficient operation if we have to direct their every step.

Mr. Marks. I agree with you. You can lead a horse to water but 

you cannot make him drink. You can point out the advantages; and 

I believe this Commission is a wise Commission intending to do what 

is best. However, I do not believe t hat there has ever been sufficient 

attention directed to the fact tha t a delegation of these noncontested 

cases will save them far more time than the hearing casework which 

they have.

Mr. Moss. Do you think we should nudge them gently in the record 

and urge that they more wisely delegate and see how that works ?

Mr. Marks. Yes, I do, Mr. Moss. I think tha t is one step we can 

take right now.

Mr. Moss. Thank you.

Mr. Rogers of Texas. Mr. Younger?

Mr. Younger. Mr. Marks, I do seriously object to your recommendation about an Administrator. All you would be doing is appointing 

two men. You would have a direct conflict between the Administrator 

and the Chairman of the Commission and the members of the Commission, all of whom derive their power, derive their appointment 

from the President and confirmation from the Senate. Personally, I 

would never agree to that. I think, if there is anything done in the 

way of creating of an Administrator, it has to be done as a man employed by the Board and under the Board, and he holds his office by 

and with the consent of the Board. But, aside from that, you made 

the statement tha t the chiefs of the bureaus sat around waiting all the 

time for assignments.

Mr. Marks. No. I am sorry, sir. I did not say tha t or at least 

I hope I did not say that. The chiefs of the bureaus are quite busy.

Mr. Younger. Now repeat what you said about the assignments to 

the bureaus.

Mr. Marks. I said, NIr. Younger, tha t under existing legislation it 

would be possible for the Commission to delegate right now to the 

chiefs of the bureaus.

Mr. Younger. Ju st a minute. It is not what would be possible. 

It is when you were outlining what is actually done at the present 

time and what caused the delay. You go back to tha t testimony.

Mr. Marks. Let me repeat this to you.

Let us take one of these routine applications for an increase in 

power of a radio station of which there are hundreds every year. 

That application goes to an engineer for study. It goes to an accountant and a lawyer for study. They write reports. The chiefs 

of the bureaus review them. They send them down to the full Commission. At a meeting of th e full Commission a member of the staff 

gets up and reviews what is in the written report and recommends 

tha t the application be granted. The Commission then grants it. The 

chiefs of the bureaus are quite busy because they have these tremendous numbers of applications going through their offices which they 

review and send to the Commission for approval.
72 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Younger. I do not know how we are going to get back to what 

von said before.

You were talking about the assignment, that somebody came in 

and said, “Where is my application? It has l>een here for 5 weeks 

or so and has not l>een assigned.”

Mr. Marks. That is the Commissioners. The Commissioners are 

visited by members of the industry, very properly. When there is 

delay an individual affected will come to the Commission, will come 

to Washington and say, “I want action. It is imperative for me, my 

very existence may depend on getting permission to move from this 

place to that place,” or “get an increase in power.”

The Commissioners very properly will try to check and find out 

why there has l>een this delay. They will try to find out why the 

staff has not been able to process it.

That is what I said, sir.

Mr. Younger. Then it is not because the Commission has not assigned the case ?

Mr. Marks. Oh, no, sir. No. I am sorry if you got that 

impression.

Mr. Y ounger. When you read your previous testimony 1 think you 

will find th at you gave the impression that the delay was occasioned 

by the fact that the Commission had not assigned the case.

Mr. M arks. No, sir. Tha t is not so.

Mr. M( )ss. Will the gentleman yield at that point ?

Mr. Y OU NG ER . Yes.

Mr. Moss. Using the word “assigned,” it would be true tha t your 

testimony was that the failure to delegate in these instances brought 

about, the delay because the Commission itself has to sit and, as you 

recited, have a staff member come up and read the content of these 

reports; and you said it took 15 or 20 minutes on each of these inconsequential matters.

Mr. M arks. It depends upon the case. Sometimes they could 

take 15 minutes and sometimes 5 minutes.

Mr. Moss. The failure to delegate causes the delay?

Mr. Marks. The delay comes afte r the staff has finished its report 

and from tha t point until the Commission itself acts on its there is 

a delay. It can be a month. It can be 3 weeks. But there is a delay 

which is unnecessary because it is a routine matter.

Mr. Moss. Tha t is a little different than the testimony so far because originally the delays were occasioned by the oral arguments.

Mr. Marks. That is right.

Mr. Moss. This is in a nonadjudicatory or at least a noncontested 

matter.

Mr. Younger. But the reason for all this consideration sprang 

from the oral arguments which are mandatory and which took so 

much time of the Commissioners that they did not have time for 

the important work.

Now you say it is the time tha t it takes for the uncontested case, 

not the oral argument.

Mr. Marks. Tha t is right, Mr. Younger. I wanted to focus your 

attention on a different phase of delay. I do not believe any other 

witness has talked to you about that and tha t is why I feel so strongly about it, tha t if you could eliminate the noncontested and not
FED ERAL COMM UNICAT ION S COMM ISSION REORGANIZATION 73

the oral argument problem, you would find that there would be 

greater efficiency.

Mr. Younger. Tha t is all.

Mr. Rogers of Texas. Mr. Rogers.

Mr. Rogers of Florida. Mr. Marks, I am not quite clear as to' 

whether I understood your feelings on appeal from those matters 

which are not contested.

Mr. Marks. Yes.

Mr. Rogers of Florida. You would allow an appeal?

Mr. Marks. Yes; I would say that, if the delegation took place 

to the Chief of the Bureau, the Commission, on its own motion, 

could at any time set aside and review it if for any reason it 

wanted to.

In addition to that, let us suppose the Broadcast Bureau Chief 

acted and then somebody came in awakened to the fact tha t an action had been taken. I would allow the Commission to review it 

and to set it aside.

Mr. Rogers of Florida. But the only appeals, then, from administrative decisions, and not broad policy decisions would have to be 

initiated by the Commission itself?

Mr. Marks. That is right, because there are no intervening parties. There are no parties affected if it is noncontested, by its very 

definition.

Mr. Rogers of Florida. Unless the decision were adverse. Unless 

the administrative ruling were adverse to the party?

Mr. Marks. It could not be adverse without giving him a hearing, 

sir. Any matter which the Commission wishes to deny must be set 

for hearing under existing law.

Mr. Rogers of Florida. So that you could continue that?

Mr. Marks. That is right.

Mr. Rogers of Florida. So tha t any person turned down on his 

request would have a hearing?

Mr. Marks. Right.

Mr. Rogers of Florida. Before the Commission ?

Mr. Marks. Before an examiner, as is presently the case.

Mr. Rogers of Florida. I realize that. But suppose the examiner 

rules against him ?

Mr. Marks. Then I would urge the continuance of the present p rocedure of review by the full Commission.

I want to point out tha t I feel it is imperative that due process be 

accompanied by one review. If an examiner acts, it should be reviewed by either the full Commission or by a panel of the Commission. I l>elieve this is fundamental in due process and, incidentally, 

it is not only confined to our jurisdiction. It is the world over.

There was a meeting of international commissions of jurists in New 

Delhi, India, last year and one of the resolutions was that due process 

must be accompanied by one review of the action of the hearing 

officer or judge, so that I would urge tha t in hearing cases there be a 

review by the Commission.

Mr. R ogers of Florida. So that actually then your proposal would 

provide that, on all of the questions th at are not contested and that 

are acted on favorably, there would be no need for further actions?

Mr. Marks. Th at is right, sir.
74 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Rogers of Flori da. Bu t those who are denied in unc ontested 

matt ers would have the righ t of ap pe al eit he r to a panel of Com missione rs or to the full Commission ?

Mr. Marks. Tha t is righ t, Mr. Rogers.

Mr. R ogers of F lorid a. Th an k you very much.

Mr. R ogers of Texas. Mr. Hem phill.

Mr. IIeaipiiill. The th in g th at concerns me fro m a practic al stan dpo int is the fact that, in uncon tested applicat ion s, in the sit ua tio n 

as it pre sen tly presen ts its elf the y are so waterlog ged at the Com ­

mission, thro ug h no fault of th eir own or because the y do no t have 

the fac ilities th at we seek to give the m by this legislation, th at in 

uncontested matt ers in one field th at I know of the y are 120 day s 

beh ind, I believe th ey told me.

From a pract ica l sta nd po int in giving service to the peop le of the 

di strict of the St ate where I live, th at is a matter of concern.

Mr. Marks. Yes, s ir.

Mr. H em ph ill. Th e question we are concerned wi th here is how to 

step up the pro ced ure to facilitate th e service to the public and at th e 

same tim e no t dele gate so much power th at this Comm ission or any 

othe r could get out of con trol. I th in k th at is why this com mittee is 

so c autious.

I t seems to me th at , if in unc ontested matters you cou ld assign a 

staff mem ber un de r the pres ent leg islation or you could assign a he aring exam ine r, if he h as sense enough to e xam ine the conteste d matters 

he ce rta inly has sense eno ugh to disch arg e ad minist ratio n on uncontested ma tte rs.

I f the re were no ap pea l th at decision would become final.

W hy could it n ot wor k with in the fra me wo rk of th e present legislation ?

Mr. Marks. When you use the ter m “hearin g exam ine r,” you by 

th e very use of the word, ind ica te th at there is some reason for a 

he aring, nam ely a contest or pro ble m inv olving the ap pli catio n so 

th at it has to go to a hea rin g.

My principa l discussion tod ay is on those appli catio ns which have 

no problems which could be acte d on routinely, which meet all of th e 

requirements.

Th e 120 days’ dela y which you refer to, and T do not know the 

field, is a very exp editious processing . In the bro adcast field delays 

are a ye ar or more and it is not due to the fa ul t of the Commission 

pro bably as much as it is t o the treme ndous workload th at they have.

I say th at the Com missioners need not concern them selves with 

these matters and, if the y divorce them selves from the unc ontested 

case, they would have tim e to th in k about space comm unications and 

TV allocation s a nd clear cha nnels.

I agree with you th at , if a he aring exa miner has the ability to 

ha nd le a contested m atter the man wi th the same qualifications 

sho uld ha nd le an unc ontested m atter .

Air. H em ph ill. I think we both fai led to say what the tro uble is : 

that, the Commission is so loaded down w ith all ports of m atters , inclu ding the initial decision sometim es on contested matt ers, th at th at is 

whe re the bac klog is coming. I t is not the Com mission’s fault. It 

is the fact t hat we have n ot giv en sufficient au thor ity for any delega ­

tio n b y the Com mission on un con tested ma tters.
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 7 5

I think that is the fault now.

Mi\ Marks. There are two problems with the Commission.

First, they act as an appeals hoard; they act as a rulemaking board, 

and the volume ol work is so great that they do not have time to 

give to the mature reflection of policy. That is the chairman’s statement.

Now T say remove from their workload the routine, the uncontested matters. Remove from their workload the hearing case which 

does not involve major policy and then you leave to them a great 

deal of time to handle the important problems of space communications and what have you.

Mr. H emphill. Yes, but leaving otf any play on semantics, to say, 

that, just because he is hearing a matter, an examiner has to have a 

hearing, could we not designate the man who is now a hearing examiner as an examiner and have him assigned so many uncontested 

cases to make some decision on and expedite it? It seems to me th at 

the fact that he is a hearing examiner when it is contested and an 

examiner when it is not contested would facilitate this thing and is 

a practical solution. I think that is what this legislation proposes 

now.

Mr. Marks. Mr. Hemphill, you would not take up the time of a 

judge, which is what a hearing examiner is, with the question of 

whether or not a zoning permit should be issued. A clerk could do 

that.

My concern is that the clerical problems be handled by clerks and 

not be reviewed bv the seven Commissioners.

Now, I think it comes to a question of definition. Uncontested 

matters need not go to any hearing examiners except to engineers and 

lawyers and they can act on them very quickly just as a clerk can issue 

a zoning permit.

Mr. Hemphill. That is not being done today.

Mr. Marks. It is not, sir, and that is the thrus t of my testimony.

Mr. Hemphill. We are faced with this proposition. We have to 

work somehow within the framework of the setup that we have; that 

is, of seven Commissioners and the various personnel assigned to va rious duties within the Commission or for the Commission.

What I am trying to do is take this legislation, instead of some new 

proposal that will cause a lot of consequences.

That was the reason for my proposition.

I do not have a particular interest in i t except that I want to help 

the Commission and I want to help the public.

Mr. Marks. This legislation will do a great deal. I favor the objectives of the legislation.

My testimony has been to an additional problem of delay which will 

also acomplish your objectives within the framework of this 

legislation.

Mr. Hemphill. The Commission under this legislation if enacted 

can designate to someone who is familiar with looking over the uncontested applications and determining from the experience in the field 

whether or not there is a hidden problem and saying, “There is no 

hidden problem. There is no problem on the face of it. Let us just 

pass it.’’ I think it can be accomplished.

The question in my mind is whether it will be accomplished.
76 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

You have the opportunity but it is a question of whether o r not the 

thing works.

Mr. Marks. Tha t is Mr. Moss’ observation.

Mr. Rogers of Texas. Mr. Marks, why do you think it was required in the first instance in the act itself, tha t these matters be reviewed by the Board.

Mr. Marks. I do not think tha t anybody in 1934 dreamed tha t the 

volume of work would be so great as it is today. We did not anticipate television and the many uses of radio, not only for home entertainment and information but commercially. We did not anticipate 

the problems of space communication, the international complications. 

We have just grown.

This is a multi-billion-dollar industry. In 1934 it dealt with millions. Today we deal with billions. Instead of 150 radio stations we 

have 5,000. That is the reason.

Mr. Rogers of Texas. You jus t think it was inadvertently required 

as a Commission responsibility and, if the act were being written 

today and the matter came up, the determination would hinge on 

whether or not the responsibility of the Commission itself would re ­

quire it to review uncontested or nonadjudicatory cases?

Mr. Marks. I agree with you, Mr. Chairman. I think if it came 

up today you would approach it in an entirely different light. You 

would say, “This Commission, chosen from all walks of life, seven 

men from different political parties, is to lend its wisdom to policy, to 

matters of international and national importance, not as to whether a 

radio station is to move from location A to B with no complaint 

about it.”

Mr. Rogers of Texas. Mr. Marks, have you, as an attorney prac ­

ticing before these regulatory agencies, or have any of your colleagues, 

ever given much thought to the formation of an independent regulatory agency appeal board or court ?

Air. Marks. That has been considered at administrative meetings 

of the American bar and has been considered by committees of the 

FCC bar. It involves not only the FCC but CAB, ICC, and the host 

of regulatory agencies.

I am one who favors, strongly, the administrative setup of the 

independent agency. I believe there is a purpose for it. It is not a 

court. It is not a legislature, but it is a combination of quasi-legislative, quasi-judicial, and quasi-executive. I believe its creation and its 

operation are very necessary; but the only problem we have is improving it, not eliminating it. I would not tran sfer everything to a 

court, no.

Mr. Rogers of Texas. If you set up a court or an independent review agency, to review the decisions of each of the regulatory agencies, you still would not answer the question that you have here insofar 

as your procedure in a pa rticu lar regulatory agency is involved?

Mr. Marks. Tha t is right, sir.

Air. R ogers of Texas. Wh at you are suggesting is simply the addition of an administrator or another phase to screen these matters 

and to relieve the Commission of the obligation to go into the noncontested matters. I would not say nonadjudicatory m atters because 

tha t is not entirely clear. Let us jus t sav to go into the noncontested 

matters with the power in the Commission, on its own motion or on
FEDERAL COM MUNIC ATIONS COMM ISSION REORGANIZA TION 77

the motion of any party who might be aggrieved or interested, to 

thoroughly review the matter.

Mr. Marks. That is right, sir.

Mr. Eogf.rs of Texas. Then tha t would take away from the Commission a lot of the work th at is consuming the time tha t they ought 

to be using in hearing oral argument which is necessary in controversial matters.

Mr. Marks. And oral arguments on matters of extreme importance 

to the country and to the world like space satellites.

Air. Rogers of Texas. Policy matters.

Air. Marks. Policy matters.

Air. Rogers of Texas. Now, could not this be done in the present 

framework of the act if you separated the noncontested matters that 

have to be determined into several different divisions and p ut a cloak 

of authority on a present employee there for handling these matters, 

thus writing the law so that the Commission would not have to assume responsibility for something tha t they did not do if something 

should come up la ter on to bring embarrassment as a result of a maladministration of one of these matters ?

Mr. AI arks. Air. Chairman, you have summarized very aptly the 

testimony I have intended to offer and I want to say to Air. Aloss particularly that I am not wedded to the idea that the Administrator be 

appointed by the President. The Administrator can be appointed by 

the Commission and they retain all of the authority.

I am not desirous of taking the authority away from the Commission as much as I am interested in seeing them removed from the 

tedium, from the time-consuming task of handling matters of a nonpolicy nature, and tha t is why I think the Administrator would 

solve it.

Mr. R ogers of Texas. Mr. Alarks, that is my observation about this 

insofar as an administrator is concerned, and I think we have a like 

situation in two or three other agencies of this Government at the 

present time. When the Administrator is tied too closely to the Commission, in the situation you suggest, you do not have pure appellate 

power. In my way of thinking it presupposes that there will be a 

complete break between the original decision and the body giving the 

review, so th at they will not be in any manner influenced by what 

happened lower down on the totem pole.

I think that sometimes when you try to work these things together 

you run into tha t sort of situation. I think we do it in some of our 

agencies where, although there are different individuals doing it, they 

are reviewing th eir own decisions. I do not think it is a very healthy 

situation from an adjudicatory standpoint.

Mr. Marks. Well, there are two views as to whether an administra tor should be independent or come within the authority of the creating body. I say t hat the concept of an A dministrator is more important to me than who appoints him or to whom he reports because 

it is like an auditor going over the routine reports and putting his 

initials on them. It is moving the papers which are important at 

this stage and you must have a person of intelligence and ability looking at the papers to make such that they comply; but it is f ar more 

important tha t he move the papers once they comply than to have 

seven men looking at the routine reports.
78 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Mr. Rogers of Texas. Mr. Marks, if we take this as an appellate 

situation and constituted the Commission as an appellate body, 1 

think it would be absolutely necessary that the Administrator be appointed by the President and confirmed by the Senate. If you do not 

do that, I do not think you are going to get into the appellate situation at all.

I think you are simply adding another employee. If that is what 

we want to do, I think we should have the legislation amended so 

as to meet this requirement at the present time.

Now, do you feel tha t H.R. 7333 as it is presently written would 

result in saving time and cutting delays ?

Mr. Marks. Yes, I do, sir. I would like to support the comments 

made by the bar association with respect to the r ight of review, however. I believe that whenever a hearing examiner has handed down 

a decision there should not be a discretionary review. There should 

be a mandatory review consistent with the policy th at no action of a 

tria l judge should go unreviewed. I do not particula rly feel th at it 

should be by all seven Commissioners but I do believe th at somebody 

should review the actions of the hearing examiner if we are to have 

a due process of law.

Mr. Rogers of Texas. You mean if a proper request is made?

Mr. Marks. Yes.

Mr. Rogers of Texas. I certainly agree with you on that.

I do not think the question of review should be a m atter of discretion in a situation of this kind. Would tha t be your only observation? 

What, about the difference now between H.R. 7333 and S. 2034?

Mr. Marks. Sir, I am sorry tha t I have not studied S. 2034 with the 

same particularity so tha t I could comment intelligently. So I am 

going to pass that one.

Air. Rogers of Texas. Did you have questions ?

Mr. Moss. I may be guilty of having failed to listen to the last 

response to your question. As I recall your statement, Mr. Marks, 

you indicated tha t the change that you advocated is this greater delegation under existing authority in 5(d) together with 7333 and 

tha t would accomplish the objectives of the committee appointed by 

you when you were president of the Communications Bar Association. 

Now, from that do I in fer that you endorse H.R. 7333 ?

Mr. Marks. I endorse the objectives of 7333 with the change I have 

just pointed out.

Mr. Moss. That is what I wanted to get. You do not want review 

to be discretionary, is th at correct?

Mr. Marks. Tha t is right, sir.

Mr. Moss. You feel tha t any matter heard by an examiner should 

be reviewed as a matter of right?

Mr. M arks. If requested.

Mr. Moss. If requested. Now, do you feel tha t that review must 

be before the full Commission or before a panel of employees, an 

individual Commissioner, or a panel of Commissioners?

Mr. Marks. I believe it should be by a panel of Commissioners or 

the full commission fo r the following reason: To me the Federal Communications Commission was created, the legislative history would 

indicate, in order to have men of different walks of life and perhaps 

different philosophies act as a policy-determining board. Only by
FEDERA L COMM UNICAT ION S COMM ISSION REOR GANIZAT ION 79

rev iew ing actions of tria l jud ges will they mak e policy and the refore 

I believe Com missioners sho uld mak e policy in review ing he aring 

cases. I do not believe i t sho uld be by other employe es or ot he r he ar ­

ing examin ers.

Mr. Moss. If the y feel th at there is sufficient importance to a m at ­

te r they c an, as a f ul l C omm ission, h ear it un de r the p roposed language 

of H. R. 7333 or S. 203 4,can they n ot?

Mr. Marks. T hat is right. Th ey can.

Mr. Moss. They are no t req uir ed to hear it?

Mr. Marks. I wou ld recommend th at they be required. I think 

th at a m atter of he aring sho uld be reviewed because, by review ing 

he arin g cases, you mak e policy and I th in k the Comm ission should 

make policy.

Mr. Moss. Th is is dif fer ent th an the sit ua tio n in some of the oth er 

agencies where pro bably ju st as much policy exists as in matters 

br ou gh t before the Fe de ral Com municatio ns Commission.

I f a m atter is h eard by a n exam ine r a nd appeale d to the panel, why 

is not th at app eal sufficient if the Commission feels the re would be 

no obje ctive serv ed by th ei r taking th eir tim e to review it? Th ere 

are many of these matt ers which are not matters of broad public 

interest which m ay be prose cut ed very vigorously.

Air. Marks. Mr. Moss, if you say th at it is reviewed by a panel of 

Com missioners, I a gre e th at it need not be th e full seven Comm issioners 

bu t it should be a p ane l of Com missioners ra th er than a pan el of h ea ring exam iners.

Mr. Moss. As I recall Mr. Booth ’s testim ony yeste rda y, he suggested th at the people c on sti tutin g this review bo ard be perso ns equally 

well qualified as those who he ard it in iti al ly ; not necessa rily Comm ission ers bu t pers ons e qua lly as well qualified.

Mr. Marks. We ll, I am sorry. I did not he ar Mr. Booth's te stimony bu t I would disagree with any recommendation which would 

be that a review be by other than Commissioners.

Let me tell you why, sir.

Mr. Moss. As I recall there was only one of the recommenda tion s 

made by Mr. Boo th th at was not una nim ous and t he recom menda tion 

which was not una nim ous was not the one we are now re fe rrin g to.

Air. AI arks. Well, I do believe, from read ing his sta tem ent, th at 

you are correct th at the executive com mittee div ide d on th at recommendation and , to the e xte nt that there is a division, I s up po rt the re ­

view by Commissioners.

Let me g ive you an illustra tio n.

Air. Moss. I wa nt t o ge t this stra ig ht because here we have the imme dia te pa st p res ide nt of the Comm unications B ar and yeste rda y we 

had the c urrent p res ident of th e Comm unications Ba r.

Re ad ing fro m Mr. Bo oth ’s statem ent, h e s ay s:

Section 3 of II.R. 7333 would repeal section 409(c) of the Communications 

Act and would perm it the Commission to consult with its key employees, such 

as the General Counsel and Chief Engineer, in certain insta nces in adjudicatory 

cases. The association recommends th at the present prohibitio ns he retained. 

I have been directed to rep ort t ha t thi s is the only recommendation of the association which was not unanimously approved by our executive committee.

Now, as to the su ggestion as to am end ing H.R. 7333:

The Adm inistrative Procedure Act contemplates t ha t a hea ring examiner shall 

possess unusual and supe rior qualifications, ability, and experience.
8 0 FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION

Th e sta tem ent then recommends th at the review panel mem bers be 

persons a t least as well qualified.

Th is was a una nim ous reco mm end atio n of the executive committee 

of th e Com municatio ns Bar.

You are u rg ing t hat the position be chan ged and that on ly the p ane l 

of Com missioners be pe rm itted to un de rta ke th is review fun ction in 

the absence of rev iew by the full Commission.

Mr. Marks. Tha t is r ight, M r. Moss, and I sp eak f or m yse lf on this 

as a pa st presi dent. I am not on the executive comm ittee and did not 

pa rticip ate in these deliberations , b ut I hav e str on g feeling s, sir, th at 

matt ers of po licy wheth er you call the m rou tin e or not, matters of a ppeal and review should be acted on by the full Commission because I 

can conceive of a situatio n where the Commission might feel th at a 

matter is routi ne af te r it ha d been th ro ug h a contested he aring and 

delega te it to hea rin g examiners.

I will give you an extrem e illus tra tio n which probably wou ld not 

tak e place but we can never an tic ipate wh at will u ltimately happen.

Le t us s upp ose there was a contest fo r a television cha nnel betw een a 

newspaper, the only new spaper in th e town and a gro up of local people, 

and the exam ine r det erm ine d th at the re would no t be a mon opoly of 

com municatio ns and th at the newspaper was be tte r qualified. Now, 

th at might be a decision which you perso nally might agree with or 

dis agree with. I t make s no difference bu t cert ain ly it is a fun dame nta l 

question of p olicy. To allow a b oa rd o f h ea rin g exa min ers to review 

the action of the initial exa miner to me would be de leg ati ng the au ­

th or ity of the Comm ission co ntrary to leg islative intent. I t is by a 

review of contes ted cases t hat the Commission makes polic y and sometim es even the most innocuo us he arin g case th at has been contested 

will develop a question of policy and I believe the Commissioners, 

all seven or a panel, sho uld sit on those cases.

Mr. Moss. Of course, M r. Marks, i f I say at this point that the Commission has deve loped a policy af te r all of its heari ngs, and it has 

he ard each of these cases inv olv ing the po int you raise in connectio n 

wi th th is, I w ould say a t t he moment th at , on t he m atter of the con trol 

of communicatio ns m edia o r creation of a monopoly in th e co mm unity, 

the Commission has spok en out with conside rable vig or on bo th sides 

of the qu estion.

Mr. Marks. Exactly.

Mr. Moss. And has overrule d one exam ine r on the same po int th at 

it h as used to sustain an othe r; so th at , I do not t hink t hat i t res ult s in 

the prod ucing of policy. It has p rod uce d confusion, as I s tud y it, bu t 

no t policy, unless Ihe confusion is the policy.

Mr. Marks. But giv ing it to a review board of exa miners is not 

going to p rod uce any b etter policy.

Mr. Moss. I doubt if it prod uces any more confusion.

Mr. Marks. We ll, we are hoping fo r a po int in ou r existence, Mr. 

Moss, where the re will be con sistent policy if th at is possible in an 

ad minist rativ e agency.

Mr. Moss. You s triv e f or uto pia .

Mr. Marks. We strive for uto pia , sir.

Th e Chair man (p re sidi ng ). Is the re an ything fu rthe r?

I regret, Mr. Marks, th at an oth er m atter pre vente d me fro m bein g 

here du ring the course of y ou r testim ony th is mo rning. I am pa rtic-
FEDERAL COMMUNICATIONS COMMISSION REORGANIZATION 81

ul arly intere sted in what you h ad to say. 1 certa inly w ill go o ver th is 

record very c are fully. I hav e been brief ed ab out th e g enera l appro ach 

th at you have taken.

On behalf of the comm ittee , I wa nt to than k you for yo ur ap pe ar ­

ance an d the assistance th at you h ave given in h elping to deve lop this 

record and explore the pro blems involve d here and in tryi ng to come 

to a resolution th at would be he lpfu l in rea ching the objectives for 

which all o f us seem to striv e.

Th e com mittee will tak e into consider ation yo ur suggestion s, partic ularly in view of the long exp erie nce you have ha d in the pas t.

Mr. Marks. Th an k you, Mr. Ch airma n. I am h onore d by tlie a tten ­

tio n the committee has given me.

I indeed appreciat e th at an d I hop e th at my sug ges tions have pr ovoked some tho ught.

I f I can be of any fu rther assistance I will c ertainly offer it.

Tha nk you.

Th e Chairman. Tha nk you v ery much.

I wou ld like for the com mittee to rem ain in executive session for a 

mom ent.

Th is w’ill conclude t he hearin gs on th is p roposed bill.

I might say, fo r the inform ation of the mem bers and anyone else 

who is intere sted, th at i t is my purpo se t o hold an exe cutive session the 

early part of next week by the subc omm ittee. I wa nt to also advise 

the com mittee, not only th e subcom mittee bu t all the members of the 

com mittee, that I p lan next week at such date as can be app ropr iately 

arrang ed , to st ar t a series of executive sessions by the full committee 

to con sider a numb er of bills th at hav e alr ead y been acted upo n by 

subcom mittees and are pend ing before the com mittee and whi ch need 

and mu st h ave con sideration .

(W hereu pon, at 1 1:10 a.m., th e s ubcomm ittee proceeded to executive 

session a nd the he ari ng s closed.)


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