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REORGANIZATION PLANS 1 AND 2 OF 1961 ' ,

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EIGH TY -SE VE NT H CONGRESS

FIRS T SESSION

ON

THE PRESIDEN T’S REORGANIZATION PLANS 1 AND 2 WITH 

RES PEC T TO THE SEC URITIES AND EXCHANGE COMMISSION AND THE FED ERA L COMMUNICATIONS COMMISSION

MAY 11, 16, AND 17, 1961

(EXECU TIVE HEA RINGS—RELEASED JUN E 15, 1961)

Printed for the use of the 

Committee on In te rsta te and Foreign Commerce

73531

U.S. GOVER NM ENT PR INTING OF FICE

WA SHINGT ON : 196 1
COMMITTEE ON INTE RSTATE AND FOREIGN COMMERCF

OREN HA RR IS, Arkansas, Chairman

JO HN BE LL WI LLIAM S, Mississippi

PE T E R F. MA CK , J r., Illinois

KEN N ETH A. RO BE RT S, Alabam a

MO RG AN M. MO UL DE R, Missouri

PA RLEY O. STAGGERS, West Virginia

WAL TE R RO GE RS, Texas

SA MU EL N. FR IE DEL, Maryland

JO HN J. FL YN T, J r., Georgia

TORBERT H. MA CDON ALD, Mass achu setts

GE OR GE M. RHOD ES, Pennsylvania

JOHN JA RM AN , Oklahoma

LEO W. O’BRI EN , New York

JO HN E. MOSS , California

JO HN D. DI NO EL L, Michigan

JOE M. KI LG OR E, Texas

PA UL G. RO GE RS, Florida

RO BER T W. HEM PH IL L. South Carolina

DA N RO ST EN KO WSK I, Illinois

JOHN B. BEN NET T, Michigan 

WI LLIAM L. SP RI NGER , Illinois 

PAUL F. SC HE NC K, Ohio 

J. AR TH UR YO UN GE R, California 

HA RO LD R. CO LL IER, Illinois 

MIL TO N W. GL EN N, New Jersey 

SA MU EL L. DE VI NE , Ohio 

AN CH ER NE LS EN , Minn esota 

HA STING S KEIT H, Mass achu setts 

WILL AR D S. CU RT IN , Pennsylvania 

AB NER W. SIBAL, Connecticut 

VE RN ON W. TH OM SO N, Wisconsin 

PETER H. DOM IN IC K, Colorado

JA MES C. HE AL EY , New York

W. E. Williamson, Clerk

K enneth J. P ainter, Assistant Clerk

Professional Staff

Andrew Stevenson Sam G. Spal

Kurt Borchardt Martin W. Cunningham

Spec ial Subcomm itt ee on Regulatory Agenc ies

OR EN HA RR IS, Arkansas, Chairman

W ALT ER RO GE RS, Texas JO HN B. BENNETT , Michigan

JO HN J. FL YN T, Jr., Georgia WILL IAM L. SP RIN GER , Illinois

JO HN E. MOSS, California J. AR TH UR YO UN GE R, California

PA UL G. RO GE RS , Florida VE RN ON W. TH OM SO N, Wisconsin

Charles P. Howze, Jr., Chief Counsel

H erman Clay Beasley, Subcommittee Clerk

II

/<> a<:

X
C O N T E N T S

Message fro m th e Pre si den t of th e U ni te d S ta te s re la ti ve to th e re gula to ry Page 

ag encie s of ou r G ove rn m en t (H . Do c. 135, 87 th Co ng ., 1st se ss .)_______ 1

L ett er from Pre si den t K en ned y tr ansm it ti ng—

Reo rg an iz at io n Pla n No . 1 of 1961_________________________________ 8

Reo rg an iz atio n Pla n No . 2 of 196 1_________________________________ 10

• S ta te m ent of—

B ar tley , R ober t T. , Co mmiss ione r, Fed er al C om m un ic at io ns Co mmission __________________________________________________________ 114

Cra ve n, T. A. M., Co mmiss ione r, Fed er al C om m un ic at io ns Co mm ission --------------------------------------------------------------------------------------------- 120

Cross , Jo hn S., Co mmiss ione r, Fed er al C om m un ic at io ns C om m ission . _ 138

Fo rd , Fre de rick W., Co mmiss ione r, Fe de ra l C om m un ic at io ns Com ­

mission __________________________________________________________ 120

H yd e, Ro sel H ., Com miss ione r, Fed er al C om m un ic at io ns Co mmissi on -------------------------------------------------------------------------------------------- 100

Lan dis, Hon . Ja m es M _____________________________________________ 13

Lee , R ober t E., Co mmiss ione r, Fe de ra l Com m un ic at io ns Co mmissi on _____________________________________________________________ 117

Minow , Hon . New to n N., C hai rm an , Fed er al Com m un ic at io ns Co mm ission _____________________________________________________ 57 ,9 7, 14 1

A dd itio na l in fo rm at io n su b m it te d fo r th e re co rd by —

Fed er al Com m un ic at io ns Com miss ion:

Add ress by N ew to n N. Minow , C ha irm an , to 39 th Ann ua l Con ­

ve nt io n of N at io nal Assoc iatio n of B ro ad ca ster s, M ay 9, 1961.. 84

Ca ses in which Com miss ion he ar d or al ar gum ent in la st quart er

of 1960_____________________ , _______________________________ 64

Il lu st ra ti ve ex am pl es of fo rf ei tu re ca ses________________________ 64

L ett er from Com m ission er R obert T. B ar tley to Sen at or Jo hn L.

M cC le llan ___________________________________________________ 116

Lis t of co mmon ca rr ie r adju dic ato ry pr oc ee di ng s______________ 63

Se cu ritie s an d Exc ha ng e Co mmiss ion, le tt er from H on . W illiam L.

C ar y, C hai rm an ____________________________________________________ 13

h i

' x

REORGANIZATION PLANS 1 AND 2 OF 1961

THURSDAY, MAY 11, 1961

H ouse of Representatives,

Specia l Subcommittee on Regulatory Agencies

of th e Committee on I nterstate and F oreign Commerce,

axhington, D.G.

The subcommittee met, pursuant to call at 2 p.m., in room 1334, 

New House Office Building, Hon. Oren Ha rris (chairm an of the 

full committee) presiding.

Prese nt: Oren H arris, Mr. Flynt, Mr. Moss, Mr. Rogers of Flo rida, 

Mr. Bennett, Mr. Springer, Mr. Younger, Mr. Thomson.

Also present: Charles P. Howze, J r., chief counsel of subcommittee ; George W. Perry, associate counsel of subcommittee; Herm an C. 

Beasley, subcommittee clerk ; Rex Sparger, staff assistant of subcommittee; Ku rt Borc hardt, legal counsel, House Committee on Inter ­

state and Foreign Commerce; Allan H. Perley, legislative counsel of 

House of Representatives; James A. Lanigan, associate general counsel of the Committee on Government Operations; Elmer W. Henderson, counsel to the Subcommittee on Executive and Legislative reorganiz ation; FCC Chairm an Newton N. Minow; and FCC Commissioners Rosel H. Hyde, Robert T. Bartley, T. A. M. Craven, Fr ederick W. F ord and John S. Cross.

The Chairman. Let the committee come to order.

I think we can proceed at this time.

The Special Subcommittee on Regulatory Agencies has met this 

afternoon for the consideration of Reorganization Plans 1 and 2 submitted recently by the President, proposing to reorganize certain functions w ithin the Federal Communications Commission and the Securities and Exchange Commission.

Fo r the record on the subject, I think i t would be advisable at this 

point to include in the record the special message of the President of 

April 13, 1961. If there is no objection, this will be included at the 

outset in the record.

(The material referred to is as follows:)

[H . Doc. 135, 87 th Cong., 1 st se ss.]

Message F rom th e President of th e United States Relative to

th e Regulatory Agencies of Our Government

To the Congress of the United States:

i . introduction

The discharge by the regulatory agencies of this Government of the responsibilities that the Congress has placed upon them must be a constant and continuing concern of both the Congress and the President. The responsibilities 

with which they have been entrusted permeate every sphere and almost every
2 REO RGA NIZATION PLANS 1 AND 2 OF 196 1

acti vity of our nati onal life . Wheth er it be trans porta tion, communications, 

the development of our natur al resources, the han dlin g of labor-management 

relation ships, the eliminatio n of unfair trade practices, or the flow of cap ital 

investment—to take only a few examples—these agencies and their perform ­

ance have a profound effect upon the direction and pace of our economic growth. 

I f it is in the public interes t to maintain an indu stry , it is clearly not in the 

public interest by the impact of regu lator y author ity to destroy its otherwise 

viable way of life . Furthe rmore , the industries subject to their juri sdic tion are 

intertwined with our natio nal defense to such a degree tha t the health of these 

industries can well be regarded as an index of both our strength and our power 

to survive . Thus the capa city of these regulatory agencies to meet their responsibi litie s, and the efficiency with which they disp atch their business, becomes 

a s ubject of tremendous significan ce to the e ntire Nati on.

A. The res pon sibilities of the Con gress.—Both the Congress and the President 

have a continuing duty to be w atch ful with respect to the acti vities of the regu latory agencies. The Congress must see that the statutes under which the agencies are organized and under which they operate adequ ately set fort h the goals 

that the Congress seeks to achieve. These statutes should neither place responsibilities upon agencies beyond the pra ctic al limits of adm inistrat ive actio n, nor 

couch their objectiv es in such indecis ive terms as to leave vas t areas open for 

the free play of agency discretion. The Congress also has the final responsibility to determine from time to time the exte nt of the influence that these agencies should exer t, whether their auth orit y should be withd rawn from or curtailed in one field or extended to and expanded in another . In addition, the 

Congress ha s a rig htf ul concern with both the o rganization of the regu lator y agencies and the fair nes s and efficiency with which they dispatch their business. 

Fin all y, inasmuc h as the funds for their operations must be a ppropriated by the 

Congress, an intim ate knowledge of their operations must be acquired if this 

function is to be discharged inte llige ntly.

Inva luab le hearings and inves tigations have been carried on by the Congress 

over the years, par ticu larly in recent years, illum inating weaknesses in administratio n and the intrusion of practices tha t have undercu t those stand ards of 

fairn ess and imp artiali ty that the Natio n rightly expects its Gov ernme nt to main ­

tain. Congressional oversigh t is thus a spur to the form ulati on and enactment 

of necessary remedial measures.

B. The resp onsibilities of the Pre sid ent.—The President also has his responsibiliti es with respect to the operation of these agencies. In addi tion to a constitutiona l duty to see that the laws are fa ith fu lly executed, and other inherent 

Exe cuti ve powers, it is his duty to staff the regula tory agencies, grante d to him, 

with men and women competent to handle the responsibilitie s vested in them 

and dedicated to the goals set forth in the legislation they are appointed to implement. The President, moreover, is ch arged in many instances by the Congress 

with the specific responsibility of removing agency members for misfeasance, inefficiency, or the neglect of duty. Coupled with this is the discretio nary exercise 

of his duty to reward fa ith fu l public service by the reappointment of agency 

members, which requires him to form opinions as to the cap abil ity of his or his 

predecessor’s appointees to handle the affa irs tha t the Congress has entrusted to 

them. In short, the President’s responsibiliti es require him to know and evaluate how efficiently these agencies dispatc h their business, inclu ding any lack of 

prompt decision of the thousan ds of cases which they are called upon to decide, 

any fai lure to evolve policy in areas where they have been charg ed by the Congress to do so, or any other difficulties tha t militate against the performance of 

their st atut ory duties.

Th is does not mean tha t either the Presiden t or the Congress should intrude 

or seek to intervene in those matters which by law these agencies have to decide 

on the basis of open and recorded evidence, where they, like the judicia ry, must 

determine independently what conclusion will best serve the public interest as 

that int erest m ay be defined by law. Intervention, if it be deemed desirable by the 

Exe cut ive or the Congress in a ny such matter, must be as a par ty or an intervenor 

in the p articular proceeding; and such intervention should be accorded no special 

preference or influence.

C. The need for improve men t.—I have long fel t tha t too little attention has 

been given to the overall operation of these agencie s by the Presid ent, and that 

too lit tle cooperation between the Congress and the President has characterize d 

the d ischarge—each in their respective roles—of th eir appro priate re sponsibilities 

with regard to the operation of these agencies. This cannot continue. For it is 

now clear tha t some advance in the methods by which the regulatory agencies
REORGANIZATION PLANS 1 AND 2 OF 19 61 3

dispatch their business is essential if they are to become, as Congress originally 

intended, effective aids to the grow th of our priva te enterprise system.

For these agencies are not merely regu latory; they are designed to fu rth er the 

expansion of certain facets of our economy, as well as the basic ten ets tha t und erlie our system of private enterp rise. Delays in the disp osition of agency business, 

and the failu re to evolve, o the r tha n by a slow case-by-case method, policies essen tial for our national growth seriously handica p the ir effectiveness in meeting 

this function.

In cer tain areas, where large subsidies are involved, such as shipping and 

avia tion, thi s promotional function is app are nt. Bu t it also underlies their regulatory activities. In the bann ing of un fai r labor practices or the desig natio n of 

employee representativ es, the Nation al Labo r Relations Boa rd seeks to uphold 

the right of collective bargaining—a rig ht upon which we, as a nation, base our 

hopes for peaceful and sat isfactory labor-management relationship s. In the 

banning of practic es th at cha racteri zed our security marke ts in. the 1920’s, the 

Secu rities and Exchang e Commission is more tha n merely regu latory ; it seeks, 

by i ts emphasis upon fa ir dealing, to achieve a san er and sounder outflow of savings into investmen t. In the banning of m onopolistic and un fair tra de practices, 

the Federal Trade Commission seeks to defend those fa ir tra de practic es which 

are necessary for the promotion of our system of private competitive ente rprise.

D. The caliber of appointed personnel.—No amoun t of reorganizatio n or new 

procedures can be effective without, or subst itute for, high qua lity personnel 

in charge of these agencies. No oth er single step can accomplish as much. In 

the past 3 months I have had the opp ortu nity to bring to m any of these agencies 

men whom I believe ar e both competent to han dle their complex affairs and 

dedicated to their sta tutory aims. The Senate of the United States has cooperated in this effort. I shall continue to pursue th at policy as the occasion 

demands, drawin g from within and witho ut the Government men of competence and imagination, who are anxious to fu rth er the ideals and goals th at 

the Congress has formulate d.

E. Coordination of regu latory action.—Befo re tur nin g to a more specific 

catalog of our admi nis trativ e ills and suggestive remedial devices to cure 

them, the re is one pa rti cu lar problem in thi s area th at demands the attention 

of both the Congress and the Pre sident—namely, the lack of coordination of 

regulatory practices. This stem s from the fact th at the origin of most of our 

agencies aro se out of the practices or the need s of a pa rticu lar industry. The 

monopolistic position held by the railroads at the turn of the cen tury brought 

the In terstate Commerce Commission into being and successively armed it with 

growing powers. The lim itations of the rad io spectrum and of our airspace 

called for the creatio n of the Feder al Communications Commission, the Civil 

Aero nautics Board, and the Fed era l Aviation Agency. The necessities of maintainin g an American-flag me rch ant ma rin e for the national defense and the 

promotion of commerce form the basis for the existence of the Fed eral Maritime Board.

This history has in many instanc es resulte d in a compartmentalization of 

regulatory activities —the tendency of each agency to consider only a single 

industry, or even a single pa rt of an industry. This is wrong. The emphasis 

must now in the nation al intere st be placed upon the hea lth and the prac tices 

of a series of industries, rig htf ull y competitive but which—from a national 

stan dpoin t—must be viewed as a whole. The problem of mass metropolitan 

tra nsporta tio n is not merely th at of the railroa ds, hut of highways and buses, 

of housing, and even of helic opters. The Transpo rtation Act of 1940 sought, 

so fa r as surface tra nspo rta tio n was concerned, to describe as a goal a national 

policy th at would give each method of transp ort tion its appro priate role in our 

economy. It is disturbing, however, to note tha t, for example, our common 

ca rrier inla nd wa terway traffic, our Gre at Lakes traffic, our intercoastal and 

coastal traffic have been withe ring away, at a pace fa r more rapid tha n appears desirable In the light of the low-cost na ture of this method of tra ns ­

portation and its potential role in the event of war. Of course, no method of 

tra nspo rta tio n should outlive its useful life: hut the absence of a firm and comprehensive policy as to what role, if any. existing methods should play in our 

nation al economy act ually is a policy in itself. It is a policy, as a Senate subcommittee only recently observed, of unres trained and des truc tive competition 

guided by priva te intere sts ra th er than th at of the pu blic as a whole.

In broa d area s where the interdepe nden ce of ind ustries is apparent, and 

where we have assumed reg ulatory func tions over all or a portion of them,
4 REO RGANIZA TION PLA NS 1 AND 2 OF 196 1

new and careful articulation of our regulatory efforts is essential. For the 

pattern now is increasingly one of fragmentation of treatment rather than 

articulation. Economic effort encouraged by one agency may find discouraging treatment by another. Iron curtains are drawn between agencies operating in the same general area. Their concern is only with the particular segment of the industry over which they have been given jurisdiction, rather 

than its interrelation to the whole. Indeed, a lack of cooperative effort often 

characterizes divisional efforts within a single agency. To correct these regulatory imbalances calls for the shaping of attainable goals and the cessation within agencies and among agencies of jurisdiction al strife. Both the 

Congress and the President can and should play a part in this effort.

I have already initiated programs in the held of aviation to frame the goals 

we should set for ourselves for this decade. The attainment of these goals will 

involve careful, detailed, and foresighted coordination on a large scale within 

the Government and several of its agencies. Similarly, a coordinated effort is 

underway to provide a better method for the allocation among governmental and 

nongovernmental users of the radio spectrum, and to improve the regulation over 

the method of their use. In the field of surface transportation, efforts are being 

made to work out positions that the administration as a whole should take toward 

the many remedial measures that have been and are being suggested with respect 

to its ills. The results of all these efforts will naturally be put before the Congress with such recommendations as they may contain.

I I . SH A R PEN IN G OF AG EN CY R ESPO N SIB IL IT Y

A. The responsibility of the chairman.—But all this is not enough. It is essential, first of all, for both the Congress and the President to fix responsibility for 

the overall operation of an agency on an individual rather than on a group or a 

committee where responsibility can too easily be dissipated. A movement, now 

demonstrably valuable, was initiated in this respect by a series of reorganization 

plans proposed by President Truman in 1950. These plans sought to focalize 

responsibility within the agencies themselves by giving broad managerial powers 

to the chairman of each agency and in turn holding th at chairman responsible, 

but not with respect to his tenure as a member of that agency, but with respect 

to those managerial powers tha t attach to his authority as chairman. Nothing 

in these plans impinged upon the ability of the members of the agencies to act 

independently with respect to controversies tha t might be before them for decision, or to participate freely and independently in the shaping of policies that 

the agency as a whole might seek to pursue. They did. however, pinpoint for 

the industries subject to their jurisdiction, for the President, and for the Congress and the Nation the managerial competence displayed by the agency under 

the guidance and leadership of its chairman.

These reorganization plans of the 1950’s did not succeed in covering all the 

agencies. Too little authority, moreover, was granted to most agency chairmen. 

I urge tha t the chairman’s role be more clearly defined and his responsibility fixed 

in every agency. Each chairman should be charged with the authority to staff 

the agency, subject, of course, to civil service requirements, and, in the important 

posts, to the advice and consent of his colleagues. Each chairman should be 

made responsible, subject to statutory requirements, for the form of his agency’s 

organization, so as to enable it effectively to dispatch the business before it. It 

should be his business to review its budget estimates and subsequently to distribute appropriated funds according to major programs and purposes. In the 

performance of these managerial duties the chairman should be responsible to 

the President and serve as chairman at his pleasure, as is explicitly provided 

with regard to several of the major agencies.

This centralization of responsibility for the managerial functions of the agency 

will significantly further their ability to deal with the business before them, 

and better enable both the President and the Congress to reach more informed 

judgments with respect to the effectiveness with which an agency pursues its 

designated programs, and the most wise and efficient use of its personnel. As a 

first step I shall shortly send to the Congress a series of recommendations which 

will carry out this concept.

B. Responsibility for ayency decisions.—One internal administrative device, 

capable of being immediately adopted by every regulatory agency and already 

adopted by four important agencies, three since the beginning of this year, needs 

still wider adoption. This is the practice of assigning to individual agency 

members the responsibility of being individually responsible for the formulation
REO RGANIZA TION PLAN S 1 AND 2 OF 1961 5

of the rationale underlying important agency decisions, its quality, and its 

release to the public under the individual member’s name. The practice of 

rendering anonymous decisions, which has hitherto generally prevailed, has 

served as a means of escaping precision and responsibility. When the actual 

source of the opinion is unknown save only that it is issued in the name of the 

agency, it not only impairs its value as a precedent, but also makes for tha t 

very dissipation of responsibility t ha t we a re trying to reduce in our administrative action. Fortunately, from the beginning of American law, our judges assumed an individual responsibility for uttering the bases which underlay their decisions. This 

practice has made not only for conscientiousness in undergoing the travail of 

decision, hut has invited examination of each proffered brick tha t would seek 

a place in the structure of our law. The adoption of this practice by the regulatory agencies would, in my opinion, tend to develop the law tha t they administer, as well as be a continual challenge to each agency member to make his contribution to the advancement of administrative justice. I am requesting a wider 

adoption of this practice.

i n . TH E REDUCTION OF EX CE SSIVE DELAYS AN D WORKL OAD S

A. Allocation of agency activities.—The reduction of existing delays in our 

regulatory agencies requires the elimination of needless work at their top levels. 

Because so many of them were established in a day of a less complex economy, 

many matters that could and should in large measure be resolved at a lower 

level required decision by the agency members themselves. Even where, by the 

force of circumstance, many of these m atters are now actually determined at the 

lower level they still must bear the imprimatur of the agency members. Consequently, unnecessary and unimportant details occupy f ar too much of the time 

and energy of agency members, and prevent full and expeditious consideration of 

the more important issues.

The remedy is a fa r wider range of delegations to smaller panels of agency 

members, or to agency employee boards, and to give their decisions and those 

of the hearing examiners a considerable degree of finality, conserving the full 

agency membership for issues of true moment. Such delegation would not be an 

abnegation of responsibility if the agency retained a discretionary rig ht of review 

of all such decisions, exercisable either upon its own initiative or upon the petition of a party demonstrating to the agency that the matter in issue is of such 

substantial importance tha t it calls for determination at the highest agency level. 

(Nothing in such a procedural change would, of course, disturb the existing rights 

of a party to seek judicial review of administrative action.)

A similar procedure—the petition for c ertiorari—succeeded in clearing up the 

overburdened docket of the Supreme Court of the United States when it was 

evolved by the Congress in the Judiciary Act of 1925. Some progress in this direction has already been made by the Interstate Commerce Commission in the 

past 2 months, which has delgated to intra-agency boards some 18,000 matters 

which otherwise would have required the attention of a Commissioner, a panel 

of that Commission, or the Commission as a whole. But more progress in this 

agency and other agencies can be made if such a program is supported by concrete measures. I shall shortly submit a series of such measures to the Congress.

B. The Federal Power Commission.—One situation, however, is not amenable to this general treatment. This is the condition t ha t exists in the Federal 

Power Commission. In tha t Commission some 4,000 rate increases by independent natural gas producers and pipelines are pending and are still unresolved. 

Under the existing law, these rate increases are suspended but nevertheless go 

into effect within 6 months after their filing, subject to the provision tha t such 

sums as are collected in excess of the rate ultimately found to be reasonable 

are to be refunded to the consumer. This incredible backlog of cases, consisting frequently of rate increases piled upon rate increases, involves hundreds 

of millions of dollars deemed ultimately refundable to the consumer. Indeed 

the annual amount of rate increases so suspended is over $500 million. The 

total amount of rates collected pursua nt to such increases is well over $1 billion.

This situation is paralleled by another jus t as serious. Under existing procedures and methods for processing applications for pipeline construction, some 

193 applications, proposing construction of 5,761 miles of pipeline at a total estimated cost of some $859 million were pending before the Federal Power Commission as of the end of February 1961. It is not to be assumed tha t all these ap-
6 'REORGANIZATION PLA NS 1 AND 2 OF 19 61

pl ic atio ns wo uld be g ra n te d ; but it ca n sa fe ly be as su med th a t mor e pr om pt 

ha nd ling of th es e m att ers wo uld re le as e hundre ds of mi llion s of dollar s fo r 

co ns truc tio n, giving su bst anti al em ploy men t th ro ughout th e co un try an d mak in g 

firm co mmitm en ts ou t of or de rs fo r m at er ia ls th a t are now merely co nt in ge nt — 

or de rs th a t in tu rn wo uld prov ide jobs fo r me n an d wo men in mi lls , fa ct or ie s, 

an d foun dr ies.

(1 ) E xe m pt io ns : The ca us e an d cu re of th is ad m in is tr ati ve log- jam—d irec tly 

resp on sib le fo r th e ex clu sio n of mill ions of dol la rs of co ns truc tion fu nds fro m 

ou r eco nom y an d po te nt ia lly resp on sibl e fo r an in ord in at e ri se in th e pr ic e of 

n atu ra l ga s—go fa r bey ond th e org an iz at io n an d pr oc ed ur es of th e PPC . I 

ur ge th e Co ng res s to en ac t new legi slatio n redu ci ng th e ag en cy ’s wor kl oa d in 

the n atu ra l ga s are a in tw o w a y s:

Th e Co mm iss ion shou ld be au th or iz ed to ex em pt from ra te re gula tion up to 

100 pe rc en t of th e sm all in di vi du al pr od uc er s of n atu ra l ga s (u nder 2 bil lio n 

cubic fe et pe r year) wh ose sa le s in in te rs ta te comm erc e to pipe lin es ac co un t 

fo r bu t 10 p er ce nt of th e to ta l. The price which th e sm all pr od uc er s ca n ch ar ge 

m us t of ne ce ss ity be ge ne ra lly in lin e w ith th os e of th e la rg er pr od uc er s, an d 

th us they ca nn ot indi vi du al ly affect th e ge ne ra l lev el of pr ic es to th e co nsum er. 

Such a step m us t be fol low ed up in th e Co mm iss ion l>y a vigo ro us han dling of 

all ra te ca ses in th e rem aini ng are a of ju ri sd ic ti on, inv olving hard ly mor e th an 

270 pr od uc er s bu t affecti ng som e 90 pe rc en t of ou r n atu ra l ga s pr od uc tio n.

W ith re sp ec t to th e proc es sin g of pi pe line co ns truc tion per m its, th e Co mm issio n shou ld be au th or iz ed to ex em pt fr om al l or p a rt of it s pr oc ed ur es up to 

100 pe rc en t of thos e ap pl ic at io ns by in te rs ta te pi pe lin e co mpa nies which see k 

me rely to en larg e, ex ten d, or re pl ac e ex is ti ng fa ci li ti es fo r th e benefit of exis ting cu stom er s only, whe ne ve r it is ass ure d th a t its ac tio n will not im pa ir the 

pre se rv at io n of re se rv es ne ce ss ar y to supp ly thos e co ns um ers, or per m it the 

in di sc rim in at e inva sion of one su pp lier ’s te rr it o ry by an ot he r.

Th e fo rm ul at io n of th es e st andard s will re quir e cr ea tive im ag in ati o n ; bu t 

th e alt ern ati ve is to de fend bure au cr ac y fo r bure au cr ac y’s sake .

(2) A dd iti on al m em be rs: I als o ur ge , be ca us e of th e cru ci al si tu ati on in the 

Fe de ra l Po w er Comm ission , th e in cr ea se of th a t Co mm ission by th e ad di tion 

of tw o mem be rs. Normally, in cr ea si ng th e mem be rs of an ag en cy ad ds li tt le 

to its efficiency an d ma y in st ea d on ly ha ndic ap its fu nc tio n. B ut th e si tu at io n 

in th e F edera l Po wer Co mm ission is un ique . T hat Co mm iss ion po ssesses on 

the one han d ju ri sd ic tion ov er el ec tric po wer pro je ct s an d, on th e ot he r, un de r 

a wh oll y se par at e st atu te —th e N atu ra l Ga s Ac t—ju ri sd ic ti on ov er th e pr od uc ­

tio n an d tran sm ission fo r sa le in in te rs ta te c om merc e of n atu ra l ga s. The te ch ­

niqu es ne ce ss ar y fo r th e han dl in g of prob lems in th e fields of el ec tric po we r 

an d n a tu ra l ga s are differen t. An un de rs ta ndi ng of one in dust ry does no t 

guar ante e a ba ck grou nd fo r de al in g w ith th e othe r. And th e ch ao s an d de lay 

now ch ar ac te ri zi ng th e ga s re gul at io n field m ay soo n in cr ea se in th e elec tri c 

po wer ar ea , whe re in th e comi ng years th e prob lems su rr oundin g th e fu tu re of 

hy dr oe le ct ric ge ne ra tion will ca ll fo r re ap pra is al an d he nc e fo r ad de d at te nt io n.

W ith th e ad di tion of tw o mo re mem be rs an d th e cle ar dis cr et io n to allo ca te 

or de lega te de cision mak ing to sm al le r pa ne ls as pr ev io us ly men tio ne d, th e Commission ’s fle xibility wo uld be g re atl y increa se d. F or ex am ple, th e C ha irm an 

could es ta bl ish th re e pa ne ls of tw o ot he r mem be rs an d hi m se lf, tw o wor ki ng 

w ith ga s an done w ith el ec tric ity or, one pa ne l of th re e mem be rs could work 

in o ne a re a, w hile an oth er pa ne l of th re e covered th e ot he r, fr ee in g th e C ha irm an 

fo r adm in is trat iv e m at te rs . Pro vi sion shou ld also be mad e fo r th e han dling of 

th e le ss er m att ers comi ng be fo re th e Co mm ission by sing le co mmiss ione rs, 

hear in g ex am iners, an d em plo yee bo ards , su bj ec t al w ay s to th e ri ght of th e 

Co mm iss ion as a wh ole in it s dis cr et io n to review an y de cis ion.

C. Pro tect io n of co nsum ers.— In it s he ar in gs th e Sen at e Su bc om mitt ee on Adm in is tr ati ve Pra ct ic e an d Pro ce dure has ca lle d att enti on to th e inad eq ua cy of 

co ns um er p ro te ctio n in th os e c as es w he re a re qu es ted ra te in cr ea se goes in to e ffe ct 

su bje ct to it s su bs eq ue nt ap pro val by th e re gula to ry agency, w ith a re tu rn to 

th e co ns um er of an y am ou nt s la te r de term in ed to be in ex cess. W he re th es e re ­

qu es ts are ov er st at ed th e c on su m er is re qu ired to fu rn is h to th e uti li ty th e ve ry 

ca pi ta l on wh ich he is also re quir ed to pr ov id e th e re tu rn , th e u ti li ty ’s cr ed it 

st an di ng is da mag ed by such a la rg e co nt in ge nt liab ility, an d th e ac tu al re tu rn 

to each indi vi du al ult im at e co ns um er is often im pra ct ic al , if no t im po ssi ble , of 

ac hiev em en t.

I, th er ef or e, stro ng ly en do rs e th e su bc om mitt ee ’s in fo rm al reco m men da tio n to 

give inc re as ed auth ori ty t o th e F ed er al Po w er C om miss ion an d to a ny oth er re gula to ry agency w he re th is is a m ajo r pro blem , to mak e su re th a t an y ex ce ss ra te
REORGANIZATION PLANS 1 AND 2 OF 19 61 7

which i s ult im ate ly d is al lo w ed w ill be retu rn ed t o th e co ns um er —p art ic u la rl y th e 

po w er to re quir e th e dep os it of an y su ch co llec tion s in es cr ow u n ti l th e ra te is 

fina lly app ro ve d.

IV. TH E IMPROV EM ENT OK AD MINIS TRAT IVE PROCEDURES

A. Aw a dm in is tr ati ve c on fere nc e.— T his N at io n has had 15 years of ex pe rien ce 

un der th e A dm in is tr ati ve P ro ce dure A ct of 1946. T h a t a c t so ught to ac hi ev e 

sta n d ard s of d ue p ro ce ss a nd fa ir n ess in th e h an dli ng of co nt ro ve rs ie s be fo re th e 

re gula to ry ag en cies b oth w ith re sp ec t to a dju dic ati on and th e iss uan ce of re g u la ­

tio ns . T h at aim n a tu ra ll y sh ou ld h e m ain ta in ed and refin ed . A la rg e am ount of 

wor k po in te d to w ar d ob je ct iv es of th is n a tu re h as be en u ndert aken by th e lega l 

pr of es sion an d by vari ous co mmiss ions , as well as by co m m itte es of th e C on gress.

The pr oc es s of m od er ni zi ng and re fo rm in g ad m in is tr ati v e pro ce du re s is no t 

an ea sy one. It re quir es bot h re se ar ch and unders ta ndin g. Moreo ve r, it m ust he 

a co nt in ui ng proc ess, cri ti cal of it s ow n ac hi ev em en ts and st ri v in g alw ay s fo r 

im pr ov em en t. Ju dic ia li zati on— th e m et ho d of det er m in in g th e co nte nt of a co ntr ov er sy by pr oc es se s akin to th os e follo wed by th e ju d ic ia ry — m ay w ell be th e 

answ er in m an y ca ses. B u t ne w pro ce dure s fo r th e analy si s of fa ct s, ba se d up on 

mor e in fo rm al m et ho ds an d m ob ili zing th e te ch niq ues of oth er di sc iplin es , ca n 

be th e an sw er in oth er ca ses, pro vi de d alw ay s th a t th e fu ndam enta ls of du e 

proc es s of la w a re m ai nta in ed . T here c an be no s in gl e se t of co nc lu sive and abid ­

ing fo rm ula s ap p ro p ri ate fo r th e effe ct iv e dis pat ch of al l th e div er se and ev erch an gi ng i ss ue s th a t th ese a ge nc ie s a re c al le d up on to reso lve.

It is fo r th is re as on th a t I hav e to da y is su ed an E xec uti ve ord er ca llin g a t th e 

earl ie st pra ct ic ab le d ate a n A dm in is tr ati ve C on fe re nc e of th e U ni ted Sta te s, to be 

or ga ni ze d an d he ad ed by an il lu str io u s ju ris t and a dis tinguis hed co un cil of la w ­

yer s an d oth er ex per ts from th e ad m in is tr ati v e ag en ci es of th is Gov ernm en t, th e 

bar , an d univ er si ty fa cu ltie s. T his co un cil will co nsi der th e qu es tion s I ha ve 

disc us sed, alon g w ith th e d esi ra bil it y o f m ak in g t h is c on fe re nc e, i f it p ro ve s itse lf, 

a co nt in ui ng bo dy fo r th e re so lu tion of th ese var ie d an d ch an gi ng pro ce dura l 

prob lems.

M ea nw hile it s org an iz at io n ca n under th e E xec utive ord er be la rg el y mo deled 

up on t he Ju dic ia l Con fe re nc e o f th e U nite d S ta te s cr eate d in 1922. which has be en 

effecti ve in un if yi ng th e ju d ic ia l sy stem of th e U ni te d S ta te s an d m od er ni zi ng its 

pr oc ed ur es . Like th a t Co nferen ce , it sh ou ld bri ng t ogeth er th e l ea din g m em be rs 

of o ur re gula to ry ag en cie s, o u ts ta ndin g p ra cti ti oners , sc ho la rs , an d oth er ex per ts . 

It ca n m ee t under th e le aders hip of it s chair m an an d co un cil , and co ns id er an d 

pr op os e ch an ge s in adm in is tr ati v e pro ce du re and org an iz ati on th a t w ill m ak e 

our re gula to ry pr oc es se s mor e effecti ve . It will be pro vi de d th ro ugh th e D ep art ­

m en t of Ju st ic e w ith a secre ta ri at, en ab ling it to become a da y- by -d ay fo ru m fo r 

co nc ern w ith ou r m an y ad m in is tr ati v e pr ob lems.

The re su lts of su ch an A dm in is tr ati ve Con fe re nc e will not be im m ed ia te, but 

pro pe rly pu rs ue d th ey ca n be en du ri ng . As th e Ju dic ia l Con fe re nc e di d fo r th e 

co ur ts, it can b ring a se ns e o f un it y to o ur ad m in is tr ati v e ag en ci es an d a de si ra ble 

de gr ee of unif orm it y in th e ir pro ce du re s. T he in te rc hange of id ea s and te ch ­

ni qu es th a t ca n en su e from w ork in g to geth er on pr ob le m s th a t upon- anal ysi s may 

pr ov e to be comm on ones, th e ex ch an ge s of ex pe rien ce , an d th e reco gn iti on of 

ad va nc es ac hiev ed as we ll as so lu tions fo und im pra ct ic al , can give ne w life an d 

ne w efficiency to th e wor k of our a d m in is tr ati v e age nc ies.

B. H ea ring ex am in er s. — No ne of th e re gula to ry ag en ci es ca n be co mplete ly 

efficie nt an d effecti ve un le ss th ey are staf fe d by ca pa bl e heari ng ex am in er s. 

The h eari ng exa m in er c an r elieve t he a ge nc y of p ro tr acte d a dju dic ato ry p roce sses, 

spee d th e di sp os itio n of th e cases, an d se rv e as a val uab le ai d in th e de cision al 

pr oc es s. The im port an ce of hi s pos itio n sh ou ld be reco gn ized by ad eq uat e pro ­

vi sion s fo r re sp ons ib ility an d co mpe ns atio n.

The st an d ard s fo r ap po in tm en ts , co m pe ns atio n, pr om ot io n an d rem ov al of 

heari ng ex am in er s are se t fo rt h in se ct ion 11 of th e A dm in is tr ati ve Pro ce du re 

Act of 1946. B ut th e ap pl ic at io n of th os e st an d ard s h as be en a co ntinuin g so ur ce 

of co nt ro ve rs y. The ex am in in g pr oce du re s per m it br oa d dis cr et io n w ithout 

sufficie nt ass ura nce s of hi gh qu al ific at io ns . The dete rm in at io n of th e pro pe r 

gra de an d pa y leve ls h as be en bu rd en so m e, in vo lv in g al m os t continuin g revi ew 

of in di vi du al po sition s sinc e 1946. The pr om ot io n pr oc es s is in exact an d has led 

to a co nce nt ra tion of al m ost all th e pos itio ns in gra de GS -15, th e hig hes t re gula r 

gra de in th e cl as sifica tio n. At th e sa m e tim e, fu rt h e r pr om otio n has become 

v ir tu all y impo ssi ble.
8 REORGANIZATION PLANS 1 AND 2 OF 1901

In order to improve the stature and quality of hearing examiners I recommend 

the following:

1. Section 11 of the Administrative Procedure Act should be amended to remove the requirement th at hearing examiners receive compensation in accordance 

with the Classification Act. Instead they should receive salaries equivalent to 

that prescribed for grade GS-16 or a grade GS-14. The higher salary would apply 

to examiners in the major regulatory agencies, whose decisions have a broad 

economic impact on the national welfare.

2. In order to recognize the administrative management responsibility of the 

chief hearing examiner in each agency I recommend tha t he receive $500 per 

annum additional compensation.

3. The Civil Service Commission should review and raise its cu rrent examining 

standards and practices for hearing examiners. The increased responsibilities 

recommended in other sections of this message will require the most qualified 

people for these key positions.

It is my hope that raising the selection standards and increasing the compensation of the hearing examiners will improve both their stature and their general 

level of competence.

CONCLUSION

The preservation of a balanced competitive economy is never an easy task. 

But it should not be made more difficult by administrative delays which place 

unnecessary obstacles in the path of natural growth or by administrative incompetence that has a like effect.

These reasons alone justify the President and the Congress in having a continuous concern with the operations of our regulatory agencies. The cure for a 

particular ill may lie in legislation; it may, on the other hand, lie in administration. But given a lack of watchfulness on the p art of both the President and the 

Congress, maladministration or ill-conceived policies can- endure and multiply to 

the consequent detriment of our economic and social welfare. It is our task to 

cooperate in achieving those legislative and administrative steps necessary to 

enable these agencies to fulfill more effectively their roles of promoting and protecting the national interest.

J ohn F. Kennedy.

The Whi te House, Apr il 13, 1961.

The C hairmxVN. Also, the statement of the President to the Congress transmitting recommendations on Reorganization Plan No. 1 and 

a copy of the proposed reorganization plan will be included in the 

record at this point.

(The material referred to is as follows:)

Message to th e Congress on Reorganization in the Securities and E xchange

Commission

T he Whi te House, A pri l 2 7,1 961.

To th e Congress of the United Sta tes:

I transmit herewith Reorganization Plan No. 1 of 1961, prepared in accordance with the Reorganization Act of 1949, as amended, and providing for reorganization in the Securities and Exchange Commission.

This Reorganization Plan No. 1 of 1961 follows upon my message of April 13, 

1961, to the Congress of the United States. It is believed tha t the taking effect 

of the reorganizations included in this plan will provide for greater efficiency 

in the dispatch of the business of the Securities and Exchange Commission.

The plan provides for greater flexibility in the handling of the business before 

the Commission, permitting its disposition at different levels so as better to promote its efficient dispatch. Thus matters both of an adjudicatory and regulatory 

nature may, depending upon their importance and their complexity, be finally 

consummated by divisions of the Commission, individual Commissioners, hearing 

examiners, and, subject to the provisions of section 7(a) of the Administrative 

Procedure Act of 1946 (60 Stat. 241), by other employees. This will relieve the 

Commissioners from the necessity of dealing with many matters of lesser importance and thus conserve their time for the consideration of major matters of 

policy and planning. There is, however, reserved to the Commission as a whole 

the right to review any such decision, report or certification either upon its own
REORGANIZATION PLANS 1 AND 2 OF 19 61 9

initia tive or upon the petition of a party or intervenor demonstrating to the 

satisfaction of the Commission the desirability of having the matter reviewed 

at the top level.

Provision is also made, in order to maintain the fundamental bipartisa n concept explicit in the basic statute creating the Commission, for mandatory review 

of any such decision, report, or certification upon the vote of a majority of the 

Commissioners less one member.

Inasmuch as the assignment of delegated functions in particu lar cases and 

with reference to particular problems to divisions of the Commission, to Commissioners, to hearin g examiners, to employees and boards of employees must 

require continuous and flexible handling, depending both upon the amount and 

nature of the business, t hat function is placed in the Chairman by section 2 of 

the plan.

By providing sound organizational arrangements, the taking effect of the reorganizations included in the accompanying reorganization plan will make possible more economical and expeditious administration of the affected functions. 

It is, however, impracticable to itemize at this time the reductions of expenditures which it is probable will be brought about by such taking effect.

After investigation, I have found and hereby declare tha t each reorganization 

Included in the reorganization plan transmitted herewith is necessary to accomplish one or more of the purposes set forth in section 2 (a) of the Reorganization Act of 1949, as amended.

I recommended that the Congress allow the reorganization plan to become 

effective.

John F. Kennedy.

Reorganization Plan No. 1 of 1961

P re pare d by th e P re si dent an d tr an sm it te d to th e Sen at e an d th e Hou se of R ep re se nta ti ves 

in Co ng ress assembled , A pri l 27, 196 1, p u rs u a n t to th e pro vi si on s of th e R eo rg an iz at io n 

Act of 194 9, ap pro ve d Ju n e 20, 194 9, as am en de d

SECURITIES AND EXCHANGE COMMISSION

Section 1. Auth ority to delegate.— (a) In addition to its existing authority, 

the Securities and Exchange Commission, hereinafter referred to as the “Commission,” shall have the authority to delegate, by published order or rule, any 

of its functions to a division of the Commission, an individual Commissioner, 

a hearing examiner, or an employee or employee board, including functions with 

respect to hearing, determining, ordering, certifying, reporting or otherwise 

acting as to any work, business, or ma tter: Provided, however, Tha t nothing herein contained shall be deemed to supersede the provisions of section 7(a ) of 

the Administrative Procedure Act (60 Stat. 241), as amended.

(b) With respect to the delegation of any of its functions, as provided in 

subsection (a) of this section, the Commission shall retain a discretionary right 

to review the action of any such division of the Commission, individual Commissioner, hearing examiner, employee or employee board, upon its own initiative 

or upon petition of a party to or an intervenor in such action, within such time 

and in such manner as the Commission shall by ru le prescribe: Provided, however, That the vote of a majority of the Commission less one member thereof, 

shall be sufficient to bring any such action before the Commission for review.

(c) Should the righ t to exercise such discretionary review be declined, or 

should no such review be sought within the time stated in the rules promulgated 

by the Commission, then the action of any such division of the Commission, 

individual Commissioner, hearing examiner, employee or employee board, shall, 

for all purposes, including appeal or review thereof, be deemed to be the action 

of the Commission.

Sec. 2. Transfer of functions to the Chairman.—In addition to the functions 

transferred by the provisions of Reorganization Plan Numbered 10 of 1950 (64 

Stat. 1265), there are hereby transferred from the Commission to the Chairman 

of the Commission the functions of the Commission with respect to the assignment of Commission personnel, including Commissioners, to perform such functions as may have been delegated by the Commission to Commission personnel, 

including Commissioners, pursuant to section 1 of this reorganization plan.

The Chairman. Also, the statement of the President of April 27, 

tran smittin g proposed Reorganization Plan No. 2, affecting the Federal Communications Commission, and plan No. 2.
10 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

(The material referred to is as follows:)

Spe cia l Mes sa ge on R eo rg an izat io n in t h e F ed eral Co m m u n ic a tio n s

Co m m is sio n

T h e W h it e H ouse , Apr il 27, 1961.

To th e Co np res s of the Un ite d Sta te s :

I tr an sm it her ew ith R eo rg an iz at io n P la n No. 2 of 1961, pre par ed in ac co rd ­

an ce w ith th e R eo rg an iz at io n Act of 1949, as am en de d, an d pr ov id in g fo r 

re org an iz at io n in th e F ed er al C om m un icat io ns C om mission.

Thi s R eo rg an iz at io n Pla n No. 2 of 1961 follo ws up on my mes sa ge of A pril 13, 

1961, to th e Co ng ress of th e U ni te d Sta te s. I t is be lie ved th a t th e ta kin g eff ect 

of th e re or ga ni za tion s in clud ed in th is pla n will pr ov id e fo r g re ate r efficiency 

in th e dis pat ch of th e bu sine ss of th e F ed era l Com m un ications Co mm iss ion .

The pla n pr ov id es fo r gre ate r flex ib ili ty in th e han dling of th e bu sine ss be fore 

th e Co mm iss ion , per m itting it s di sp os itio n a t dif fe re nt lev els so as bett er to 

pr om ot e its efficient d ispa tc h. Thu s m att ers bo th of an ad ju dic ato ry an d re gula ­

to ry n atu re ma y, de pe nd ing up on th e ir im po rtan ce an d th eir co mpl ex ity , be 

fina lly co ns um m at ed by divi sion s of th e Co mm ission , in div id ual Com miss ione rs, 

heari ng e xa m in er s, an d, su bje ct to th e p ro vi sion s of s ec tio n 7 (a ) of th e Adm inistr ati v e Pro ce du re Ac t of 1946 (60 S ta t. 24 1), by oth er em ploy ees. Thi s will 

re lie ve th e Co mmiss ione rs from th e ne ce ss ity of de al in g w ith m an y m att ers of 

less er im po rtan ce an d th us co ns erve th e ir tim e fo r th e co nsi der at io n of m aj or 

m att ers of policy an d plan ni ng . T her e is, ho wev er, re se rv ed to th e Co mm ission 

as a w ho le th e ri ght to re view a ny s uc h de cis ion, re port o r ce rtif ic at io n e it her up on 

it s ow n in it ia ti ve or upon th e pet itio n of a p art y or in te rv en or dem onst ra ting 

to th e sa ti sf acti on of th e Co mmiss ion th e desi ra bil it y of hav in g th e m att er 

review ed a t th e top level.

Pro vi sion is also ma de, in ord er to m ain ta in th e fu ndam enta l bip art is an concept ex pl ic it in th e ba sic sta tu te cr eati ng th e Co mm iss ion , fo r m an dato ry review 

of an y su ch decis ion re port or ce rtific at io n up on th e vo te of a m ajo ri ty of th e 

Com mission ers les s one me mb er. In ord er to su bst it ute th is pri nci ple of dis cr eti onar y review fo r th e pr in ci pl e of m andat ory review pu rs u an t to ex ce pt io ns th a t 

may be ta ken by a par ty , fu nc tion s of th e Com miss ion ca llin g fo r th e heari ng of 

or al arg um en ts on such ex ce pt ions under su bs ec tio n (b ) of se ct io n 409 of th e 

Com m un ications Act of 1934 (66 S ta t. 72 1), as am en de d, are ab olishe d.

In as m uc h as th e as sign m en t of de le ga te d fu nc tions in p a rt ic u la r ca se s an d 

w ith re fe re nc e to p art ic u la r prob lems to di vi sion s of th e Co mm iss ion, to Commission ers, to he ar in g ex am in er s, to em ploy ees an d boa rd s of em ploy ee s m us t 

re qui re co ntin uo us an d flexib le han dl in g, de pe nd ing bo th up on th e am ou nt an d 

n atu re of th e bu sin ess, th a t fu nct io n is plac ed in th e C hai rm an by se ction 2 of 

the plan .

Se ction 3 of th e pl an also ab ol ishe s th e “rev iew st aff ” to geth er w ith th e fu nctio ns es ta bl is he d by section 5 (c ) of th e Com m un ications Act of 1934 (66 Sta t. 

71 2), as am en de d. The se fu nc tions ca n be bett er pe rf orm ed by th e Co mm ission er s the mselves, w ith su ch ass is ta nce as th ey m ay des ir e fr om pe rs on s th ey 

deem ap pro pri at el y qu ali fie d.

By pr ov id in g soun d org an iz at io nal ar ra ngem en ts , th e ta kin g effect of th e re ­

or gan iz at io ns in clud ed in th e ac co m pa ny in g re org an iz at io n pla n will mak e po ssible more econ om ica l an d ex ped itio us adm in is tr ati on of th e af fe cted fu nc tion s. 

I t is, ho wev er, im pr ac tica ble to item iz e a t th is tim e th e re duc tions of ex pe nd itu re s which i t is p ro ba bl e will be b ro ught a bo ut by su ch t ak in g e ffe ct.

A ft er inve stig atio n, I ha ve fo und an d he re by de cl ar e th a t ea ch re org an iz at io n 

includ ed in th e re or gan iz at io n pla n tr an sm it te d her ew ith is ne ce ss ar y to acco mpl ish on e or mor e of th e p ur po se s se t fo rt h in se ction 2 (a ) of th e R eo rg an iz at io n 

Act of 1949, as amen de d.

I reco mmen d th a t th e Con gr es s allo w th e re org an iz at io n pla n to become 

eff ective.

J o h n F. K en ned y.
REORGA NIZATION PLAN S 1 AND 2 OF 19 61 11

Reor ganization P lan No. 2 of 1961

P re pare d by th e P re si d en t an d tr an sm it te d to th e Sen at e and th e Hou se of R epre se nta tives 

in Co ng ress as se mbled , Apr il 27, 196 1, p u rs u an t to th e pr ov isio ns of th e Reo rg an iz at io n 

Act of 194 9, ap pr ov ed Ju ne 20, 194 9, as am en de d

FE DE RA L C O M M U N IC A TIO N S CO M M IS SIO N

Section 1. A u th o rit y to de lega te.— (a ) In addit io n to it s ex is ting auth ori ty , 

tli e F edera l Com m un icat io ns Co mmiss ion, h ere in aft er re fe rr ed to as th e “C ommission ,” sh al l ha ve th e au th o ri ty to de lega te, by pu bl ishe d ord er or ru le , an y 

of it s fu nct io ns to a divi sion of th e Co mm iss ion , an in div id ual Com miss ione r, a 

heari ng ex am in er , or an em ploy ee or em ploy ee bo ar d, in cl ud in g fu nct io ns w ith 

re sp ec t to hea ri ng, det er m in in g, or der in g, ce rt if yi ng, re port in g or oth er w is e 

ac ting as to an y work, bu sine ss, or m a tte r: Pro vide d, ho wev er , T h a t noth in g 

he re in co nt ai ne d sh all be de em ed to su per se de th e pr ov is io ns of se ct ion 7 (a ) 

of th e A dm in is tr ati ve Pro ce dur e Act (60 S ta t. 24 1), as am en de d; And pr ov id ed

fu rt her, T h at in ac co rd an ce w ith th e pr ov isio ns of su bs ec tio n (b ) of th is s ec tion 

tli e fu nc tion s of th e Co mmiss ion w itl i re sp ec t to th e Iili ng of ex ce pt io ns to de ­

cision s of heari ng ex am in ers an d th e f unct io n of hea ri ng o ra l ar gum ents on su ch 

ex ce pt ions b ef or e th e e n tr y o f a ny fin al de cis ion, ord er o r re quir em en t as set fo rt h 

in su bs ec tio n (b ) of se ction 409 of th e Com m un icat io ns Ac t of 1934, as am en de d 

(66 Sta t. 72 1), are h er eb y ab olishe d.

(b ) W ith re sp ec t to th e de le ga tio n of an y of it s fu nc tion s, as pr ov id ed in su bse ction (a ) of th is se ction, th e Co mmiss ion sh al l re ta in a dis cre ti onary ri g h t to 

review th e ac tion of any su ch di vi sion of th e Co mm iss ion , in div id ual Com missio ne r, heari ng ex am in er , em ploy ee or em ploy ee b oa rd , up on its ow n in it ia ti v e or 

up on pe tition of a p art y to or an in te rv en or in su ch ac tio n, w ithin su ch tim e and 

in such m an ner as th e Co mm iss ion sh al l by ru le pre sc ri be: Pro vide d, ho wev er ,

T h at th e vo te of a m ajo ri ty of th e Co mmiss ion less one mem be r th ere of sh al l be 

sufficie nt to bri ng a ny s uc h ac tion b efor e th e Com miss ion fo r review .

(c ) Sh ou ld th e ri g h t to ex er ci se su ch dis cre ti onary review be de clined , or 

sh ou ld no su ch review be so ug ht w ithin th e tim e st ate d in th e ru le s pr om ulg at ed 

by th e Co mm iss ion , th en th e ac tion of an y su ch divi sion of th e Co mm iss ion , in ­

div id ua l Co mmiss ione r, heari ng ex am in er , em ploy ee or em ploy ee bo ar d, sh al l, 

fo r al l pu rp os es , in cl ud in g ap pe al or review th er eo f, be deem ed to be th e ac tion 

of th e Co mm iss ion .

Sec. 2. T ra nsf er of fu ncti ons to th e Cha irm an .— T her e a re her by tr an sf err ed 

fr om th e Co mm iss ion to th e C ha irm an of th e Com miss ion th e fu nct io ns of th e 

Co mm iss ion w ith re sp ec t to th e as si gn m en t of Co mmiss ion pe rson ne l, in cl ud in g 

Com miss ione rs, to per fo rm su ch fu nc tions as m ay ha ve been de le ga te d by th e 

Co mmiss ion to Co mm iss ion pe rs on ne l, in cl ud in g Com miss ione rs, p urs uant to sec ­

tion i of t his re org an iz at io n pl an .

Sec. 3. R evie w st aff .— The review staff, cr ea te d by se ct io n 5 (c ) of th e Comm un ic at io ns Ac t of 1934, as am en de d (66 S ta t. 71 2), to get her w ith it s fu nc tion s, 

is he re by ab olishe d. The em ploy ee s of su ch st af f may be as sign ed as th e Co mm ission may de sign ate.

The Chairman. This is an executive session. We felt it would be 

advisable to have an executive session in order that we could go into 

these proposals thoroughly, analyze them, see just what they would 

do, propose to do, develop a record as to how they would operate and 

what restrictions or limitations, if any, there would be in connection 

with the proposals involved.

I have asked the Special Assistant to the President, Dean Landis, to 

come out this afternoon in that he has worked on these and similar 

problems and is familiar with them, in order to describe and explain 

proposals from the viewpoint of those who draft them and th eir inten ­

tion as to just what they propose to do.
12 REORGA NIZATION PLANS 1 AND 2 OF 1961

I feel t ha t this is the most appropriate way in which to establish 

legislative history as well as to develop, or assist you gentlemen, in 

developing what changes are to be made, if any, in the organization 

of the Commissions involved, the functions with reference to the Commissions and to determine to what extent, if any, basic law is being 

amended by this proposal and just how it would act in its entirety.

We feel tha t by holding an executive session everybody can speak 

his own mind and be able to discuss the matter fully and completely.

In my judgment there are a lot of things t hat need to be cleared up. 

I do not know whether there have been any exaggerations about the 

proposals and what they plan to do or not. I do not know if any of 

the fears th at some people have expressed are justified.

We do know that, in view of the work of this committee, there is 

some internal reorganization that can be effectuated within these agencies that would assist them in expediting the ir work and the ir service 

to the public.

So that is the purpose of this meeting this afternoon.

As is well known, these proposed reorganization plans were referred 

to the Committee on Government Operations. We have invited the 

chairman of th at committee—and incidentally he advised me th at he 

would be here, and two members of the staff. I believe Mr. Dawson 

is engaged on the floor of the House at this time, during the discussion 

of a bill of his committee.

We do have two members of the staff of Government Operations 

with us and I thin k probably we should let the record show that.

Will you gentlemen identify yourselves for the record? I do not 

know your positions.

Mr. Henderson. Than k you. I am Elmer W. Henderson, counsel 

to the Subcommittee on Executive and Legislative Reorganization of 

the Committee on Government Operations.

Mr. Lanigan. I am James A. Lanigan, associate general counsel 

of the Committee on Government Operations.

The Chairman. I understand tha t a rejection resolution has been 

introduced, is that right ?

Mr. Henderson. Yes.

Mr. Springer. Who introduced it ?

Mr. Henderson. Mr. Hoffman of Michigan.

The Chairman. A rejection resolution has been introduced on the 

plan and obviously the Committee on Government Operations will 

have to take some action within the next 10 days.

Dean Landis, we appreciate your taking the time to come to the 

committee this afternoon for the purpose of discussing and explaining 

these plans. I think we will limit it to these two plans this afternoon.

I might say the members of the Federal Communications Commission are with us by invitation.

I extended an invitation to the Chairman and such members of the 

Commission as desired to be present for this meeting. I believe they 

are all here.

Mr. Minow. Mr. Chairman, Commissioner Lee is ill. Otherwise 

he would be here.

The Chairman. We are sorry to hear that he is ill.

I also want to say that the Chairman and members of the Securities 

and Exchange Commission were extended an invitation to be here 

this afternoon. The Chairman advised me of a prior commitment
REORGANIZATION PLANS 1 AND 2 OF 19 61 13

tha t he had outside of the city of Washington. I do have a letter 

from him which will be included in the record, in which he states the 

position of the Commission.

(The material referred to is as follows:)

Securities and Exchange Commission,

Washington, D.C., May 9,1961.

Hon. Oren Harris,

House of Representatives,

Washington, D.C.

Dear Mr. Harris : In accordance with our telephone conversation, and in 

answer to your letter of May 8, I am sending you a copy of my letter to Senator 

McClellan with respect to Reorganization Plan No. 1 of 1961.

As I indicated to you I am planning to be away all day Thursday. If this 

letter does not adequately cover the matters to be considered a t the executive 

session on tha t date, I shall be glad to appear at another time or come and see 

you in your office.

Faithfully yours,

William L. Cary, Chairman.

May 9, 1961.

Hon. J ohn L. McClellan,

Chairman, Committee on Government Operations,

U.S. Senate, Washington, D.C.

Dear Senator McClellan : I have your letter of May 3 inquiring w hether we 

have any comments or recommendations relative to Reorganization Plan No. 1 of 

1961, providing for reorganization of the Securities and Exchange Commission.

I have discussed this with my fellow Commissioners at our meeting today and 

can report tha t they have no objections to it. Indeed, we all regard i t as offering 

an opportunity to delegate certain matters which a t the present time have to be 

passed on by the Commission itself. Furthermore, there are m atters coming from 

the field offices in which decisions have to pass through more hands than their 

importance would wa rrant.

The only significant comment or criticism I have heard focuses upon the 

question whether or not the Commission’s power of rulemaking (i.e. promulgating 

rules of general applicability) may be delegated. My conclusion is that legally 

under Reorganization Plan No. 1 it may he. However, my fellow Commissioners 

and I uniformly agree tha t the question is moot: even if empowered to do so, 

no member of the Commission wishes or intends to permit any delegation of 

general rulemaking either to a panel of Commissioners or to any subordinates.

If I can be of any further assistance I hope you will let me know.

Faith fully yours, William L. Cary, Chairman.

The Chairman. Dean Landis, thank you very much for your appearance here for this purpose, because as you well know from discussions tha t we have had, and others, there is a great deal of interest in these proposals and I th ink this is one way of trying to find out 

just what the proposals do in order to get the record straight.

Mr. L andis. Mr. Chairman-----

The Chairman. I might say you have been before this committee a 

good many times and we always welcome you.

STATEMENT OF HON. JAMES M. LANDIS

Mr. Landis. Thank you, Mr. Chairman.

I was going to say tha t I originally appeared before this committee 

28 years ago and I have appeared several times since and it is always 

a pleasure to deal with this committee or any of its subcommittees.

73531— 61------ 2
14 REORGANIZA TION PLANS 1 AND 2 OF 19 61

I would like to open my remarks by speaking generally of a situation with regard to the regulatory agencies in the Federal Government.

I don't w ant to talk in terms of blameworthiness or anything of that 

nature. I simply want to talk in terms of the situation as it exists.

Broadly speaking, our administrative agencies, our regulatory 

agencies, have been criticized for the existence of delay in the disposition of the business that comes before them.

That delay exists. There is no question about it. If you take 

agency afte r agency, you will find the existence of that fact of delay.

Another aspect of the criticism that is coordinate with the question 

of delay is the absence of policy determination on the pa rt of many 

of the regulatory agencies.

I think tha t an example of the situation would show that the reasons for this are in large measure due to the volume of business that 

is required to be decided at the top level of these Commissions, in 

other words, by the agency heads.

That business is not, shall I say, all free and equal. Some of it is 

important. Some of it is not important. But decision is necessary, 

even in the minor cases, and the rapidity of decision is important from 

the standpoint of the general economy of this country.

I think, unfortunately, many things are held up simply by the press 

of business and are failed to be decided.

It is toward these two things tha t these reorganization plans, plans 

1 and 2, are directed, an effort to relieve the top levels of the agencies 

from the consideration of business t hat can be dispatched and should 

be dispatched at a lower level.

Essentially, the plans contain two basic ideas. The first is to permit 

delegation of duties by the top level to the, shall I say, the staff or 

working level and, yet, to maintain a control over tha t business so 

that policy determinations of any significance are still made as they 

should be made by the agency heads.

The delegation of these duties is most important in the adjudicatory 

field. It is the adjudicatory rather than the regulatory field which 

consumes the time of the agency heads, and provisions we made in 

these plans for delegating the adjudicatory function to employees, 

staff members, hearing examiners, and the like.

However, these plans do not affect at all the decision of the Congress in section 7 of the Administrative Procedure Act to the effect 

tha t certain adjudicatory matters should be handled by hearing examiners. Specific provision is made in these plans tha t no action 

which permits delegation should destroy the system of administrative 

adjudication that has been built up over the past 20 or 30 years of having contested cases normally handled by hearing examiners.

True, where tha t provision is not in effect, delegation can be to 

boards of employees o r to o ther individuals on the Commission staff.

But I want to point out th at there is nothing there which destroys 

the concept of the hearing examiners. In fact, I thin k these plans 

increase the responsibility of the hearing examiners and will tend to 

develop a corps of individuals scattered throughout the Government 

of hearing examiners of high caliber and responsibility to dispatch 

business promptly.

These plans look forward to the ability of an agency to delegate 

certain functions to hearing examiners with a degree of finality.
REORGANIZATION PLANS 1 AND 2 OF 19 61 15

However, it is provided tha t either the agency or a petitioner or an 

intervenor in a proceeding before a hearing examiner can petition the 

agency for review of the decision of the hearing examiner.

The agency may or may not g ran t the petition for review. I would 

assume that the agency would set forth certain standards of the kind 

of cases that it feels should be reviewed either by a panel of the agency 

or by the agency en banc. Standards of tha t nature, for example, 

many are set forth in rule 38 of the rules of the Supreme Court of the 

United States where a similar procedure is applied; namely, the petition for certiorari, which requests the Court to review a decision of 

the lower court, he it the court of appeals or he it a State supreme 

court, but in order for that request to be granted, grounds set forth in 

rule 38 should be asserted.

Section 5 of that rule reads as follows:

A review on w ri t of ce rtio ra ri is not a m at te r of rig ht, bu t of sound ju dicial 

dis cre tion, and will be gr an te d only wh ere these ar e spec ial and im po rtan t re asons the refor. Th e following, wh ile ne ith er contr oll ing nor fully measurin g 

the C ou rt’s di scret ion , indica te the ch ar ac te r of rea sons w hich will be considered.

(a ) Where a St ate court ha s dec ided a Fe de ral question of su bstanc e not 

theretofore deter mi ned by this Court, or ha s decided it in a way pro bab ly not 

in acc ord w ith applica ble decisio ns of this C ourt.

(b) Where a ci rc ui t co urt of ap pe als ha s rend ered a decision in conflict with 

the decision of an ot he r circuit co urt of ap pe als on th e sam e m atter: or ha s decide d an im po rtan t que stion of local law in a way pro bab ly in conflict with applicab le local dec isions; or ha s decided an im po rtan t question of Fe de ral law 

which ha s not been, bu t sho uld be, settled by th is Cou rt; or ha s decided a Fe deral quest ion in a way pro bab ly in conflict with appli cable dec isio ns of this 

Cou rt; or ha s so fa r de pa rte d from the acc epted and usua l cours e of ju dicial 

proceedings, or so fa r san cti oned suc h a de pa rtur e by a low er court, as to call 

for an exercis e of t hi s C ou rt’s power of sup erv ision.

(c) Where th e U.S. Co urt of Appea ls fo r th e Distric t of Columbia ha s decided a quest ion of gene ral im portance , or a question of substan ce re la tin g to 

th e co nstru cti on of applica tio n of th e Co nstituti on , or a tr ea ty or stat ut e, of th e 

Un ited State s, which ha s no t been, but sho uld be settled by this Court, or whe re 

th at co urt ha s not giv en prop er effect to an applica ble decision of th is Court.

I assume that the agencies would adopt a similar rule of tha t nature. Moreover, it is provided in all these plans in order to be sure 

that the basic bipartisan character of these agencies is maintained, that 

the majority cannot override the minority and deprive a petitioner 

or anyone of the o pportunity to be heard by the agency en banc.

In other words, if you have an agency composed of five individuals, 

in which only three of them can belong to one pa rty, presumably the 

majority pa rty at the time, under their statutes.

But a minority of two can always insist that any case shall be heard 

by the Commission en banc.

I think that preserves the bipartisan nature tha t is inherent in the 

statutes setting up these agencies.

Tha t general device, it seems to me, would enable these agencies 

to deal with the really terrific logjams th at confront them at the present time by guard ing their time, safeguarding their time for important decisions which they are supposed to make and should make.

This idea, of course, is nothing new. It is borrowed, actually, from 

the Judic iary Act of 1924, which was passed by the Congress to help 

clean up the docket of the Supreme Court of the United States.

Prior to the passage of the Judiciary Act, review could be had of 

most any court decision by a right of appeal to the Supreme Court of
16 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

the United States, and at tha t time, it was behind in its dockets some 

4 or 5 years.

It was the suggestion, I think, prim arily of Chief Justice Taft, at 

the time that the type of review wdiich now exists; namely, review on 

the basis of certiorari, should be adopted. It has been adopted, and, 

of course, as one knows now, the Supreme Court is abreast of its docket 

and it came abreast of its docket within a very short time after the 

passage of that act.

There is nothing particularly novel about these plans, except tha t it 

does do exactly that.

One other feature of these plans—and it is a second im portant feature of them—is that it provides a mechanism to deploy the human resources of the agency or the Commission to deal with business where 

it is thickest. Some mechanism has got to be invented to determine 

who will sit on a panel, what individual member of a Commission will 

be assigned a certain group of cases and who will be assigned another 

group of cases, and that mechanism should be flexible. You should be 

able to deploy those human resources conveniently and quickly where 

the need itself appears.

These plans, therefore, put tha t responsibility of deployment in the 

hands of the Chairman of the Commission.

In all these Commissions, the two Commissions, at least that we are 

talkin g about, the Securities and Exchange Commission and the Federal Communications Commission, the managerial responsibility is already resident in the Chairman of the Commission, ancl this is a problem of management. That and only that.

Now, it has been asserted tha t perhaps tha t power can be abused. 

Of course, as we know, any power can be abused. But, inherent in 

these plans are two safeguards against tha t abuse.

The first is t hat the power of delegation can only be exercised by 

the approval of the entire Commission. It is inconceivable to me tha t 

a Commission as a whole would permit an abuse of this kind of deployment power. If it existed, the delegations themselves would in all 

probability be withdrawn.

A second safeguard, however, also exists, and that is the safeguard 

of the minority having the power, in short, to reverse the delegation 

and to force decision on any particu lar matter up to the Commission 

en banc.

Those two safeguards seem to me thoroughly capable of dealing with 

any potentiality of abuse that might attach to some strong-minded and 

strong-willed chairman who doesn’t have too much regard for anything else, rather than his own opinions.

My experience indicates one of the grea t things that a chairman 

should be able to do, just as a chief justice of the court, is to try and 

command, as well as he can, generally a majority of his colleagues. 

Failing that, he is not likely to be able to even handle the managerial 

functions that attach to his position adequately and if he abuses those 

things he is likely no longer to command a majority of his colleagues.

So, there again, is sort of an implicit safeguard against any abuse 

tha t may arise.

Now, the two plans that you have before you at this moment differ 

in certain minor particulars.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 17

The minor particulars are essential because the basic acts, p articularly the Communications Act of 1934, has in it certain provisions 

which might work against this theory of delegation.

The particu lar provision in plan No. 2 dealing with the Federal 

Communications Commission is the abolition of the function of the 

Commission itself in being required to handle exceptions on appeal. 

Instead of exceptions on appeal, what is substituted is a function of 

the Commission—well, it is not substituted because th at is within the 

power of the Commission to substitute—a provision whereby a discretionary review instead of a mandatory review is granted.

The other minor difference between these two plans also concerns 

the Communications Commission.

A section of the Communications Act, section 5(c), I believe it 

is—yes—provided—it was an amendment th at came in in 1952— provided for a group of individuals known as a review staff. It is 

really a rather curious section.

This review staff, I thin k was supposed to be a sort of opinion 

writing section for the Commission, but strangely enough, in tha t 

amendment which took place in 1952, it was provided that this review 

staff should not make any recommendations to the Commission itself, 

should merely summarize records that came before the Commission 

or carry out decisions of the Commission.

In other words, if they came in and the Commission said we have 

decided to conclude that A should acquire this particu lar license, 

rather, than B and C, they would be entitled to write the opinion in 

behalf of A. But they are not entitled to give any kind of recommendation to the Commission itself.

The abolition of tha t staff would not mean the abolition of tha t 

function of assisting the Commissioners in artic ulating the basis for 

their decisions which they must do under the Communications Act 

anyway.

However, it would free the Commission to create a staff of that 

nature which would also be able to advise them before the fact as well 

as after the fact. In other words, you would have a man who works 

over the record and comes to some conclusions in the light of the 

record and the brief. Those conclusions, of course, need not be accepted by a Commissioner, b ut it is helpful to be able to get ideas 

from persons who are closely associated with that particu lar function and to get the benefit of the ir wisdom as well as their ability 

simply to compile factual data.

No such provision, to my knowledge, exists with reg ard to any other 

regulatory agency.

Going back over the history of it, I found myself somewhat at a 

loss as to just why it was passed in this particu lar form. The Federal Communications Commission at that time, with the exception 

of one member, opposed it unanimously. I don’t think th at the experience of the Commission would indicate tha t this institution formed 

as it is under section 5(c), is as valuable an institution as could be 

formed without the restrictions imposed upon it under section 5(c).

In those minor particulars, plan No. 2 differs from plan No. 1.

The Securities and Exchange Act, which sets up the Securities and 

Exchange Commission, has no particular procedures in it which would
18 REORGANIZATION PLANS 1 AND 2 OF 1961

require change as a result of the passage of a reorganization plan 

of this type.

I would like to say one other thing, too, because the question has 

come up in discussions, and tha t is the application of these plans to 

the Administrative Procedure Act, particula rly section 8(b) of that 

act.

Section 8(b) of the Administrative Procedure Act provides tha t 

the parties to any proceeding shall be afforded a reasonable opportunity to submit proposed findings and conclusions, exceptions, etc.

Now, th at is applicable under the A dministrative Procedure Act to 

each recommended initial or tentative decision or decision upon agency 

review of the decision of subordinate offices.

Section 8(b) is applicable to initial decisions, tentative decisions, 

and decisions upon agency review of the subordinate decision.

Decision on a petition for discretionary review, since it will not 

be a review and disposition on the merits of the case l>elow, is not 

covered by sect ion 8(b).

However, if a petition for discretionary review is granted, then 

section 8(b) comes into full play and full force.

There is, as I said before, no suggestion or effort to amend any provision of tlie A dministrative Procedure Act of 1946. It is my belief 

tha t these plans fall completely within the bounds of administrative 

authority granted under the A dministrative Procedure Act.

I might say, Mr. Chairman, that in both these cases, these plans 

have been approved as to legality and as to the form by the Attorney 

General.

I think tha t sets forth the purpose of these plans.

I might add one thing: They are not an attempt to try and straitjacket the agencies or to take away from the agencies the kinds of 

discretion and authority that they ought to have over their procedure.

What these plans are trying to do is to authorize the agencies to 

create a procedure more adaptable and suitable to the business as 

it exists today. In both cases these agencies were created some 25 

years ago. In 25 years the impact of the business on the agency has 

changed quite a bit and so much so that a greater degree of flexibility 

should be given these agencies to permit them, as I am sure they 

want to do, to dispatch their business effectively, efficiently, and with 

reasonable speed.

Thank you, Mr. Chairman. *

The Chairman. Thank you, Dean, for your explanations.

Mr. Flynt.

Mr. Flynt. Thank you, Mr. Chairman.

Dean Landis, I would like to address my first question to section 2, r

which would authorize the Chairm an to assign Commission personnel, including but not limited to Commissioners, to perform any of 

the functions under which Commission orders or rules may lie 

delegated.

Would that make it possible for a Chairman who found himself in 

a minority of one on the Board to assign a given function to a staff 

member to do something that he knows the Commission would not, 

otherwise do?
REO RGA NIZATION PLAN S 1 AND 2 OF 1961 19

Air. L andis. If there had been a previous authority to delegate tha t 

function to, we’ll say, a director of the division, the delegation has to 

be by the Commission as a whole.

If then he assigns it to an individual who comes within the description of the personnel t hat is set forth in that resolution of delegation, 

he could do so. However, as I say, the brakes are on him because certainly if tha t were the case or if tha t were even believed to be true by 

two members of the Commission, they could insist tha t the Commission as a whole review that action and that that action should not 

take effect until it was reviewed by the Commission as a whole.

Mr. F lynt. Would it require two or would i t require three?

Air. Landis. Two, in the case of a five-man Commission.

Three in th e case of a seven-man Commission.

Air. F ltnt. Do you feel that the adoption of Reorganization Plan 

1 or 2 or both of them would he one step fur the r toward creating a 

one-man Commission, a one-man director?

Air. L andis. I don’t believe that to he true because I think it would 

increase the statu re of the Commissioners themselves since they will 

be taking a great deal more individual responsibility, subject, of 

course, to the supervision of their colleagues, generally speaking.

I don’t believe it will lead to a one-man Commission. In fact, it 

might create a better five-man Commission.

Air. Flynt. Would it increase the stature of each Commissioner or 

would it increase immeasurably the stature of the chairman?

Mr. L andis. No, I think it would increase the s tature of each Commissioner. I don’t see that it would increase the stature of the chairman particularly. Certainly, the only thing that he acquires as a 

result of this is a responsibility for this deployment process th at I 

was speaking of, and I can not conceive t ha t that process would increase his stature. Surely, in exercising that, he would consider the 

predilections of his colleagues both with reference to their competence, with reference to th eir other duties, and try to deploy them as 

effectively as he could, consistent with their own desires.

Tha t deployment process is a common process in many courts where 

the chief justice does so. In fact, it is done in some of our courts of 

appeal in the various circuits where the senior circuit judge unde rtakes the deployment of the judges.

However, it is done by delegation there, rath er than by statutory 

authority.

However, in some of the State courts, the chief justice is authorized 

to do that business of deployment of his colleagues.

Mr. Flynt. Air. Chairman, I will have some fu rthe r questions but 

I will defer at this time to give others a chance.

The Chairman. Air. Bennett.

Air. Bennett. Dean Landis, one of the things that concerns some 

of us on this committee is whether the reorganization plan as applied 

to the Federal Communications Commission, specifically, in taking 

away the right of an individual to an appeal or to a review of his 

case by the full Commission would not be beyond the authority of 

the Presid ent under the Reorganization Act.

Would you comment on that ?

Air. Landis. Yes, I would be glad to.
20 REORGANIZATION PLANS 1 AND 2 OF 1961

Under the Reorganization Act, three types of powers can be employed by the President: The power to delegate certain duties; power 

to trans fer those duties from one outfit to another, or from one level 

to another level; and also the power to abolish certain functions.

The Chairman. I didn’t hear that.

Mr. Landis. The power to abolish certain functions.

They have been employed fairly extensively in the past in numerous 

reorganization plans which have come before you.

Now, if you have a function of the Commission to take an appeal 

from a hearing examiner, the abolition of that function comes within 

the scope of the powers granted under the Reorganization Act.

There are numerous cases in which functions of this type have been 

abolished.

For your information, I might-----

Mr. Bennett. Are you referring specifically to some authority tha t 

the President has to abolish a function which, in turn , abolishes a right 

which a private person has under existing law to an appeal or review 

by the full Commission?

Now, it is true tha t the Reorganization Act says he can change the 

function. Is it your opinion tha t it goes so far as to mean that in 

abolishing a function of the Commission he can abolish the rights of 

an individual citizen?

Mr. Landis. I think so, because certainly under the Reorganization Act you could abolish the entire Federal Communications 

Commission.

The Chairman. Say th at again.

Mr. L andis. You could abolish the entire Federal Communications 

Commission under the Reorganization Act.

Of course, nobody would quite go that far, obviously. But the power so far as the power is granted under the reorganization act is 

there. It has been utilized, for example, to abolish the old U.S. 

Shipping Board, completely.

Mr. Bennett. I doubt tha t very many Members of Congress 

understand that the reorganization authority goes that far. I am 

not saying tha t you are incorrect in your conclusions, but I think 

Congress might take another look at what they are doing.

Mr. L andis. Well, you always have control over it, you know, as to 

how far those powers are exercised.

Mr. Bennett. Well, getting back to my question-----

The Chairman. Gentlemen, you might check me a t this point.

As I recall correctly, the President abolished what was called the 

Civil Aeronautics Authority, the first, one, back in the days when Dean 

Landis was somewhat engaged in that, activity, I believe, or along 

about tha t time anyway, and established the Civil Aeronautics 

Administration.

I also believe, if I remember correctly, another P resident abolished 

the Reconstruction Finance Corporation completely, if my memory 

serves me—yes, someone said liquidated it. And if I remember correctly, something happened to the old Home Loan Board. I am not 

sure whether it was abolished or whether it was reorganized or just 

what happened to it, I am no t sure. But I do know tha t the action 

taken—and I have just been reminded by a member of the staff that 

the old Bituminous Coal Board was abolished by a reorganization 

plan.
REORGANIZATION PLANS 1 AND 2 OF 19 61 21

So, I think you have a number of precedents.

As Mr. Flynt said, I think, the authority is there.

Mr. L andis. Well, I thin k the entire Department of Health, Ed ucation, and Welfare was created under a reorganization plan, not by 

a regular statute.

Mr. Bennett. There are no present plans, however, I take it, to 

exercise tha t auth ority in the case of any of the regulatory agencies.

Mr. Landis. Th at authority has been exercised with regard to 

numerous of the regulatory agencies already.

The Chairman. I don’t think you understood the question, Dean.

Mr. Landis. I am afraid I didn’t.

The Chairman. Mr. Bennett, you might restate the question.

Mr. Bennett. My question was th at I take it there is no intention 

on the pa rt of the President to exercise his authority, if he has it, to 

abolish any of these regulatory agencies ?

Mr. Landis. Not tha t I know of.

I don’t thin k we could afford to do that from the Government’s 

standpoint. These agencies are terribly important in their functioning. Their effective functioning is frightfully important, I think, to 

all of us.

Mr. Bennett. Getting back to my question, can you cite any precedent for the P resident’s rig ht under the reorganization act, in abolishing a function of an agency to abolish at the same time a statutory 

rig ht that a private person had, as would be the case here ?

Mr. Landis. I can come very close to it : Le t me give you these cases.

Plan No. 5 of 1952, in section 2(b) , 66 Statutes at Large, 826, 

abolished the functions of the Office of People’s Council in the District 

of Columbia, an office which was set up by statute by the act of December 15,1926.

Pla n No. 1 of 1947 in section 102 of that plan, 61 Statutes at Large, 

951, abolished the function of the President w ith respect to approving 

determinations of the Secretary of Agricultu re in connection with 

agricultural marketing orders under the A gricultural Marketing Act 

of 1937.

Therefore, the President’s approval was not necessary.

In other words, there was a right to go to the President for his 

approval or disapproval of these marketing orders. That approval 

was abolished and the chain of appeal, if you might speak of it in 

those terms, stopped at the level of the Secretary of Agriculture, and no 

longer went up to the level of the President.

Mr. Bennett. I s there any right of an individual citizen involved 

there ?

Mr. Landis. I believe so, because an individual citizen who is displeased by a marketing arrangement, by a marketing order, tentativ ely 

issued by the Secretary of Agricultu re could then present his case to 

the Presiden t of the United States, somewhat similar to the situation 

that exists under the Civil Aeronautics Act today where Presidential 

approval of orders or recommendations of the Civil Aeronautics 

Board is required in the case of international rules.

Now that reviewing authority of the President was abolished by tha t 

plan in that case, and the reviewing authority existed by virtue of 

statu te and nevertheless the plan was not disapproved by the Congress 

and went into effect.
22 REORGANIZATION PLANS 1 AND 2 OF 19 61

There is another case—I would be glad to give the statutory citation.

Mr. Bennett. You haven't any cases where the courts have considered this specific question, have you ?

The case that you mentioned is not one tha t was considered by the 

courts.

Mr. Landis. No, no.

Mr. Bennett. Do you have any cases tha t support your point of 

view tha t have been decided by the court?

Mr. Landis. Strangely enough there are substantially no court decisions on the reorganization act and its powers. I don’t know why. 

The lawyers haven’t been particularly litigious about the reorganization act. There are some minor renditions that are of little value in 

this field. In the broad field there is very little in the way of court 

decisions on the reorganization act and I would also say this, strangely 

enough, that scholarship in the field of administrative law has largely 

neglected the reorganization act and the powers that the President 

can exercise with reference to the trans fer, delegation of functions, 

and the like.

Mr. Bennett. It seems to me tha t taking away the right of an individual to appeal, to have his case reviewed by a full Commission as 

distinguished from a review or a panel or something of that nature, is 

taking away from him a substantial right. I just can’t see tha t the reorganization act was intended to have the President go tha t far.

Mr. Landis. Can I make this observation, that this is not taking 

away the right of an individual to appeal to the Commission. Tha t 

still exists, but the Commission doesn’t necessarily have to handle the 

appeal.

Mr. Bennett. That is right. It takes it away as a m atter of right 

and makes it a discretionary matter with the Commission.

Mr. Landis. That is true.

Mr. Bennett. Which are two entirely different things.

Mr. Landis. That is true.

Mr. Bennett. Now, was this particular matter, this pa rticular phase 

of the reorganization plan discussed with anybody, with Commission 

members, for example, or with the Commission, before it was promulgated ?

Mr. Landis. Was it-----

Mr. Bennett. Was it discussed with the members of the Federal 

Communications Commission ?

Mr. Landis. It was discussed—yes, it was discussed with the Federal 

Communications Commission. A draft of the plan was sent to the 

Chairman and I understand that the Chairman consulted with members of the Commission with regard to it. That has been the practice 

in all these cases. Naturally, you want to get their ideas.

I think in the case of the Federal Communications Commission, 

there were perhaps seven opinions, rath er than one. I think there is 

general unanimity on the desirability of what I would call the delegation feature of these plans. The lack of unanimity exists perhaps 

with regard to the deployment responsibility of the Chairman.

Mr. Bennett'. Well, Dean Landis, are you the auth or of these 

plans?

Mr. L andis. I wouldn’t exactly want to claim that. I worked on 

them.
REO RGA NIZATION PLANS 1 AND 2 OF 1961 23

Mr. Bennett. The reason I asked th at is because I am wondering 

how it was decided and why it was decided to pick these two areas to 

deal with in respect to the Federal Communications Commission and 

ignore many other things which I think probably are recognized as 

areas tha t might also be dealt with, not particularly in a reorganization plan, but fo r Congress itself to deal with.

Mr. L andis. Well, these are the two most immediate areas in the 

field of administrative practice tha t seemed to need attention, and it 

isn't tha t these two Commissions are particularly picked out.

Plans similar to these have been sent up to the Congress already 

with regard to the Civil Aeronautics Board and with regard to the 

Federal Trade Commission.

Similar plans are in preparation with regard to other agencies.

Mr. Springer. What other agencies?

Mr. Landis. But they have not been as yet finalized.

Mr. Springer. Wh at other agencies ?

Mr. Landis. Other agencies t Generally speaking, I would say the 

National Labor Relations Board, the-----

Mr. Springer. Federal Power Commission?

Mr. Landis. Federal Power Commission.

Incidentally, tha t Commission has transmitted a memorandum 

already to, 1 believe it is this committee—I am not certain—approving 

the general principle of what I would call the delegation concept of 

these plans.

Then the Inte rsta te Commerce Commission, which has done a very 

effective job of delegation already, so far as it feels it is permitted 

to do that by statute.

The Interstate Commerce Commission has wiped off some 16,000 

items.

Mr. Springer. 16,000 what?

Mr. Landis. 16,000 items on its docket that otherwise would have 

demanded the attention of a Commission or a panel of the Commission 

or the Commission in full.

They have realized tha t there is too much detail coming to the level 

of the Commission.

The Chairman. Dean, off the record.

(Discussion off the record.)

The Chairman. The committee will come to order. I am very 

sorry for the interruption. You may proceed without further inte rruptio ns now.

Mr. Bennett, you were questioning Dean Landis. You may proceed.

Mr. Bennett. Section 5(a) of the Reorganization Act, under subsection (4)—Do you have the act?

Mr. I jAndis. Yes; I have it.

Mr. Bennett. It states that no reorganization plan shall provide 

for and no reorganization under this act shall have the effect of authorizing any agency to exercise any function which is not expressly 

authorized by law at the time the plan is submitted to Congress.

Is it not true that, in effect, as to the Federal Communications 

Commission, this plan authorizes the agency to exercise three separate 

functions that are not authorized under the present law : One, namely, 

to delegate its adjudicatory functions; two, to give the Chairman the
24 REORGANIZA TION PLANS 1 AND 2 OF 196 1

right to delegate the Commission’s power to others; and, three, to 

exercise a discretionary right in the matter of review ?

Mr. Landis. I do not think so because those powers are already 

possessed by the agency. Initial decisions are now being made by 

the hearing examiners and that is expressely required by the Ad ministrative Procedure Act.

Mr. Bennett. Is it not true, Dean, t ha t the existing law does not 

give a hearing examiner adjudicatory authority ?

Mr. L andis. Tha t is true, tha t the existing law does not give him 

that.

Mr. Bennett. But this reorganization plan would, or could ?

Mr. Landis. This plan simply provides th at the hearing examiner’s 

decision can be made final by the Commission, by denying a review 

with reference to that matter.

Mr. Bennett. That is a function that cannot be delegated at the 

present time; is not that right ?

Mr. Landis. I do not believe so. In the ligh t of section 409(b) 

of the Communications Act, there seems to be a right to take exceptions to hearing examiner’s report and get oral argument on those 

exceptions before the Commission as a whole. But if you abolish 

that, you are not creating a new function.

Mr. Bennett. If a hearing examiner does not have auth ority to 

make a final decision under existing law, then this plan changes his 

function or his authority and gives him tha t right under certain circumstances, is that not true ?

Mr. Landis. No ; I do not think that is true.

He has the authority now to make a decision.

Mr. Bennett. Does he have the rig ht to make a final decision if 

somebody appeals ?

Mr. L andis. He does not even have the right to make a final decision unless the petition for review is denied by the Commission, in 

which case his decision becomes final.

Mr. Benneti'. Yes; but under present law his decision does not become final in any case where one of the litigants appeals.

Air. Landis. That is true.

Air. Bennett. In other words, the test of whether his decision is 

final depends upon a r ight that the litigan t has to take an appeal for 

review by the entire Commission.

Mr. Landis. Yes.

Mr. Bennett. Tha t right is being destroyed by this reorganization plan. If a trial examiner makes a decision, tha t decision would 

be final unless the Commission exercises a new function, a discretionary function, which is not under present law, of granting by form 

of certiorari the right of review. Is not that true ?

Mr. Landis. I would look at it this way; namely, that under the 

existing law the litigan t can take exceptions to the trial examiner’s 

report and is entitled to be heard on those exceptions before the 

Commission as a whole and the Commission must deal with those exceptions, either sustaining them, modifying them, or denying them.

Air. Bennett. You are speaking about present law now ?

Air. Landis. Tha t is the present law.

Air. Bennett. Yes.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 25

Mr. Landis. Under this plan, a different procedure could be put 

into existence. This plan itself does not put it into existence. It 

enables the Commission to put a different plan into existence, which 

does not abolish the right of the litig ant to request review by the 

Commission.

Mr. Bennett. Let me inte rrupt you right there. By doing what 

you just said, the Commission is exercising a new function; is it 

not?

Mr. L andis. I would not say it is exercising a new function. It is 

exercising only pa rt of the function which it possesses under the act 

as it stands now.

Mr. Bennett. Under the act as it stands now, any litigan t can file 

exceptions to a hearing examiner’s decision, can he not ?

Mr. Landis. Th at is right.

Mr. Bennett. Under the reorganization plan, he may not have t hat 

right.

Mr. Landis. He has the righ t to petition.

Mr. Bennett. Yes; but he may not have tha t rig ht; is not tha t 

true?

Mr. Landis. He does not have that. That is abolished, or can be 

abolished by Commission action.

Mr. Bennett. Did you finish your answer ? I guess I interrupted 

you.

Mr. Landis. I said tha t under this plan here, the Commission could 

act so as to abolish the mandatory right of appeal, but I cannot see 

tha t that imposes a new function upon the trial examiner because the 

tria l examiner is doing exactly w hat he was doing before.

Mr. Bennett. I will get away from that, because that gets into some 

refined technicalities th at at least divert me from the point I am try ing 

to make, which is thi s: th at the exercise of a new function is the discretionary authority by the Commission as to w’hether or not they will 

review a decision of the trial examiner.

Mr. L andis. I did not say that is exercising a new function. It is 

exercising a function tha t-----

Mr. Bennett. They cannot deny it tod ay; could they ?

Mr. Landis. No; they can not deny it.

Mr. Bennett. When this plan goes into effect, they could deny the 

rig ht ?

Mr. Landis. They could.

Mr. Bennett. That changes the function, does it not, Dean?

Mr. Landis. The function is abolished.

Mr. Bennett. Th at is right.

Mr. Landis. The function of the Commission to hear in a mandatory 

way an appeal from a hearing examiner is abolished, but a lesser 

function, one th at is within that large function, is preserved: namely, 

the right of discretionary review.

Mr. Bennett. I s it not true tha t if this plan goes into effect they 

will be exercising a function in respect to review that they cannot 

exercise now ?

Mr. Landis. Well, you were substituting, you were shaving down 

the right of review because in exercising this function of determining 

whether to review a case, tha t, of course, is a part of the general, overall function of reviewing a case. Now, I cannot see tha t tha t is the 

exercise of a new function on the part of the Commission.
26 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

Mr. Bennett. I think that is splitting hairs, Dean. It seems clear 

to me that there is a considerably wide variance in whether a Commission is required by statute to hear an appeal or whether they may hear 

the appeal within their discretion.

To my mind, there is as much difference between tha t as there is 

between the poles; yet you contend, as a matter of fact, this does not 

change or give them any different type of function.

Mr. Landis. Tha t is my contention. It seems to me tha t they 

are doing just about the same thing, but they are not doing the full 

thing that they might exercise if they were reviewing the case on the 

merits.

Mr. Bennett. What about the delegation of the authority by the 

Chairman? Is not that something new and different than exists under 

present law ?

Air. Landis. No, because if you look at the Communications Act, 

the authority of the Chairman—statutory authority—is very broad.

Mr. Bennett. Under existing law, can the Chairman delegate authority to anybody to make a final decision ?

Mr. Landis. The Chairman cannot do that, no.

Mr. Bennett. But he could under this reorganization plan?

Mr. Landis. No, he could not, because there is always an opportunity to seek review of that.

Mr. Bennett. If the Commission so decides.

Mr. Landis. Yes, or if a minority of the Commission decides.

Mr. Bennett. Well, what is the difference? How does this proposed authority for the Chairman to delegate authority to other people differ under the reorganization plan from present law ? I do not 

think you have made that clear.

Mr. Landis. I would like to make this clear, tha t the Chairman 

does not do any delegation. It is the Commission tha t delegates.

Air. Bennett. The Commission delegates to the Chairman?

Air. Landis. The Commission, we will say, will establish a panel, 

say, “We will have three panels of two commissioners each.” Now 

tha t is done by the Commission as a whole. All the Chairman has 

the power to do is to assign various commissioners to these panels 

tha t have been set up by Commission authority.

Air. Bennett. I want to quote from a staff report here to the members of the committee on this matter because I want to get it clear 

in the record, at least. I agree with what is said here, but in order 

tha t it can be clearly in the record so I can get a clear-cut answer 

from you, I would like to know whether you will agree or disagree 

with this statement:

Legal argument can be made that the foregoing limitation—that 

is the limitation under the reorganization act about functioning—is 

violated by these plans in at least three respects, namely, one, a 

delegation of an adjudicatory function by rule or order—we discussed tha t—and this one, two, delegation to the Chairman of the 

Commission’s power to delegate such function.

Is tha t an accurate statement ?

Mr. L andis. I do not think tha t is accurate.

Air. Bennett. You do not think so ?

Air. Landis. No, I do not think th at is accurate because these plans 

do not authorize the Commission to delegate to the Chairman powers
REO RGA NIZATION PLAN S 1 AND 2 OF 1961 27

that only the Commission can delegate itself. I do not think they 

authorize that.

Mr. Bennett. You say that is incorrect ?

Mr. L andis. I think that is.

Mr. Bennett. What about number three: legal argument can be 

made th at this exercise of functions under the reorganization act has 

been violated with respect to the FCC ’s power of discretionary review of adjudicatory matters ?

Is that correct ?

Mr. Landis. Could you repeat that last sentence ?

Mr. Bennett. You may read it.

Mr. Landis. Well, of course, legal argument can be made for almost any position, as you know. The making of a legal argument 

does not necessarily mean th at it is a good one, and-----

Mr. Bennett. In this case, you say it is a bad one?

Mr. Landis. I do not see that you can argue tha t this is creating a 

new function to authorize the FCC to limit its review powers so tha t 

they become discretionary rather than mandatory. They have the 

mandatory power now. They are obliged to exercise it, and you are 

abolishing the mandatory phase of it, leaving a review power there 

on a discretionary basis.

Mr. Bennett. Dean, let me read the reorganization plan itself. 

You refer to that, Refer to section 2.

I will read it for the record. It says:

T ra n sf er of fu nct io ns to th e C ha irm an . T here is he re by tr an sf err ed fr om th e 

Co mm iss ion to C hai rm an of th e Co mmiss ion th e fu nct io ns of th e Co mm iss ion 

w ith re sp ec t to th e as si gnm en t of Com miss ion pe rson ne l, in cl ud in g Co mm ission er s, to pe rf or m su ch fu ncti ons as m ay ha ve be en del eg at ed by th e Co mm ission to th e Co mmiss ion pe rs on ne l, in cl ud in g Com miss ione rs, purs u an t to section 

1 o f th is re org an iz at io n plan .

Now, the last part of that is a little bit of gobbledygook, but the first 

part of it, it seems to me, is pretty clear, that is, tha t there is hereby 

transferred from the Commission to the Chairman of the Commission 

the functions of the Commission with respect to the assignment of 

Commission personnel.

Does tha t change the present law or does it not ?

Mr. Landis. 1 do not know whether it changes the present law or 

not, It changes the present practice.

Mr. Bennett. It changes the present functions of the Chairman, 

does it not?

Mr. Landis. Whether or not under the law this assignment of Commission personnel rests in the Commission or in the Chairman, I think 

is a very doubtful question because under the Communications Act 

the Chairman is specifically given the authority 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.

Now, I think a legal argument can be made that really section 2 is 

not necessary, but in order to be clear on that question, section 2 is a 

desirable thing.

Mr. Bennett. I am not questioning the necessity. 1 am questioning 

what it does. Does it, or does it not, give the Chairman of the Commission some functions to perfo rm that he does not now have the 

authority to perform ?
28 REO RGA NIZA TION PLA NS 1 AND 2 OF 1961

Mr. Landis. Well, he participates in-----

Mr. Bennett. You can answer tha t “Yes” or “No,” can you not?

Mr. L andis. No. He participates in the performance of th at function now under the existing law. He certainly participates.

Now, what is done is to transfer the functions of the other four Commissioners to him.

Mr. Bennett. Tha t is right.

Mr. Landis. So tha t he is exercising the function of the other Commissioners to assign personnel, but as I read-----

Mr. Bennett. Tha t is right, and that is a change in the present law 

and that is a violation of the language of the reorganization act which 

I read to you a few minutes ago.

Mr. L andis. Well, I do not think so, Mr. Bennett, because this section says, authorizing any agency to exercise any function, which is 

not expressly authorized by law at the time the plan is transm itted to 

the Congress.

Tha t is, any agency. In other words, you could not transfer the 

power of the Federal Communications Commission to assign their 

personnel to we will say, the Chairman of the Securities and Exchange 

Commission. But this is not a tra nsfer to another agency. This is a 

tran sfer within the agency itself. I cannot see that as the creation 

of a new function.

Mr. Younger. Will the gentleman yield on tha t point ?

Mr. Bennett. Yes.

Mr. Younger. You make the very strong point tha t there is nothing in this reorganization act tha t is different from the present law, is 

tha t true ?

Mr. Landis. I would not say that.

Mr. Younger. Well, now, wait a minute. You have made a strong 

plea, Dean, tha t there is no change being made in the reorganization act from the present law. Now, is there or is there not?

Mr. Landis. I said tha t with reference to section 2. We were discussing section 2.

Mr. Younger. All right, any par t of it.

Mr. Landis. I said with reference to section 2, it is questionable 

under the Communications Act-----

Mr. Younger. Well, is there any change in the reorganization 

act-----

Mr. Landis. There is certainly a change in the practice of the 

Commission.

Mr. Younger. That is different from the present law and the practices that could be under the present law ?

Mr. Landis. The present law does not specifically say tha t the assignment of Commission personnel to various tasks is the function 

of the Chairman. It does not specifically say that, and probably there 

was no need to say that under the Communications Act inasmuch 

there was not-----

Mr. Younger. Well, in your opinion, Dean, could the Chairman 

perform tha t function under the existing law ?

Mr. Landis. Not under the existing law.

Mr. Younger. Then there is a change ?

Mr. Landis. Because there is no-----

Mr. Younger. I yield back to Mr. Bennett.
REORGANIZATION PLANS 1 AND 2 OF 19 61 29

Mr. Bennett. Go ahead.

Mr. L andis. Because there is no division of the Commission in p anels a t the present time. Therefore, there would be no need to assign 

Commission personnel to these panels, since they don’t exist. Now, 

you are creating, you are giving tha t authority to the Commission 

to create these panels. Therefore, there must be some authority to 

deploy people to sit on these panels.

Mr. Bennett. Dean, I want to say with all due respect, and I say 

this with respect, that I recognize your grea t legal ability and the 

many contributions tha t you have made to the teaching of law, and 

so forth, but I want also to say frank ly that it seems to me you are 

just plain splitting hairs here and getting us away from the meaning 

and effect of what is being done in this reorganization plan.

Mr. Landis. I hope I have not done that, Mr. Bennett. I have 

tried to make clear what is capable of being done under this reorganization plan. You will note it does not force anything to be done, 

but it gives authority to do certain things, and, as I say, with regard 

to the assignment of Commission personnel, it makes clear tha t tha t 

responsibility becomes the Chairman’s, rather then where it might 

otherwise lie in the Commission itself.

I know, for example, the practice of the Interstate Commerce Commission which has panels, they call them divisions. There the assignment of Commission personnel to those divisions is done by Commission minute. It happens that there is nothing particularly in the 

statu te tha t says it shall be done by Commission minute or by the 

Chairman. But tha t is the practice there, and I would imagine th at 

that practice would continue unless you had this section 2 in existence.

Mr. Bennett. Would it not be better, where there is a question of 

doubt as to the P resident’s authority to change existing law to come in 

here with recommendations and let this committee repo rt a bill and 

let the Senate committee report a bill to approve a repeal of these sections if it is advisable and wise to do it, rather than to have by reorganization plan a nullification of the act which the reorganization law 

itself does not contemplate ?

Mr. Landis. I would not say tha t the law does not contemplate it. 

I thin k the law contemplates exactly this kind of thing, and so fa r as 

the theory of the reorganization act is concerned, it permits the P resident to make suggestion to the Congress in the form of a plan, but, 

nevertheless, the Congress is the final arbiter with regard to whether 

tha t plan shall become law or otherwise.

Mr. Bennett. That is right, of course, Dean. This thing can be 

argued up and down, but this is even worse than what we criticize in 

the cloture rule because in the cloture rule, members of the committee 

can at least offer amendments in the committee before it is reported 

by the committee. But, here, not even a committee or any branch 

of the Congress can offer an amendment or a change to this plan. 

They either have to accept it in its entirety or reject it. It seems to 

me tha t tha t is a mighty poor way for us to have to legislate in an 

important area like this.

Our committee has spent nearly 4 years studying the Federal Communications Commission, the many possible defects in the law itself 

and possible changes. We have recommended legislative changes.

73 53 1— 61------ 3
30 REORGANIZATION PLANS 1 AND 2 OF 19 61

Bills have been introduced to implement those changes. We would 

have a hearing. We would at least go through the formality of letting 

people come in here publicly and say whether they approved or disapproved of this bill. We cannot do that with this kind of an arrangement. We either have to take this recommendation which is 

based not upon the hearing but just upon somebody’s idea of w hat is 

a good thing to do ; in this case, yourself, I guess. So we accept that 

or reject it in its entirety. I think that is a mighty poor way of doing 

business.

Tha t is all.

The Chairman. Mr. Moss.

Mr. Moss. Not at the moment.

The Chairman. Mr. Springer.

Mr. Springer. Dean Landis, may I say th at your position, I think, 

here is not very clear.

When were you appointed by the President ?

Mr. L andis. It was sometime, in just before the end of January. I 

do not recall the exact date. Jan uar y of this year.

Mr. Springer. And what was your title?

Mr. Landis. Special assistant.

Mr. Springer. To the President?

Mr. L andis. Yes.

Mr. Springer. And what were to be your duties as special assistant 

to the President?

Mr. Landis. My duties were to examine, generally speaking, the 

field of regulatory agencies and see what suggestions I could make 

either to them, to the President, or to the Congress, if desirable, as to 

what improvements could be made with regard prim arily to their 

practice and procedure.

Mr. Springer. You were the President’s representative, is that true?

Mr. Landis. I am.

Mr. Springer. You are ?

Mr. L andis. Well, I suppose I represent the administration in behalf of this plan.

Mr. Springer. You represent the executive department ?

Mr. Landis. That is right.

Mr. Springer. Soon afte r your appointment, did you talk with 

members of the Commission ?

Mr. Landis. Did I talk with them ?

Mr. Springer. Did you talk with members of the Commission ?

Dean Landis, subsequent to your appointment, did you talk with 

members of the Commission ?

Mr. Landis. I talked at great length with the new Chairman of 

the Commission. I have had correspondence with anoth er member 

of the Commission, and he, in turn , I think, has talked with other 

members of the Commission.

Mr. Springer. You have had personal contact with two of the members of the Commission ?

Mr. Landis. If you call letterw ritin g personal contact, yes.

Mr. Springer. All right.

Have you had any contact with any other members of the Commission other than that one member and the Chairman ?

Mr. Landis. No. Not personally.
REORGANIZATION PLANS 1 AND 2 OF 19 61 31

Mr. Springer. Now, with this one member, you had only correspondence ?

Mr. Landis. Th at is right.

Air. Springer. No telephone conversations ?

Air. Landis. I don’t believe so.

Air. Springer. No personal conversations ?

Air. Landis. Except socially; yes, I saw him.

Air. Springer. Now, right after that, did you have contacts with the 

Chairman of the Commission ?

Air. Landis. I have had contact with the Chairm an of the Commission constantly. I can’t recall exactly the times, and so on.

Mr. Springer. Without regard to naming the individual dates, 

would you tell me approximately how many times you have had contact with the Chairman of the Commission ?

Air. Landis. I would say at least a half a dozen times.

Air. Springer. At least a ha lf a dozen times ?

Air. Landis. At least a half a dozen.

Air. Springer. Were those at the White House ?

Air. Landis. No.

Mr. Springer. None of them ?

Air. Landis. Some of them in my office.

Air. Springer. Where is your office ?

Air. Landis. In the old State Department Building.

Air. Springer. The old State Department ?

Air. L ANDIS . Y e s .

Air. Springer. Down at the Executive end of the avenue ?

Air. Landis. Th at is righ t.

Air. Springer. Did you have any contacts with him in his office, over 

at the Commission ?

Air. Landis. No ; I don’t believe I did.

Air. Springer. Wh at were the nature of these conversations ?

Air. Landis. General discussion about plans and what can be done 

to help in the dispatch of the business of the Commission.

Air. Springer. Subsequent and during those conversations, did you 

also talk with the President ?

Air. Landis. That I cannot tell you. I must decline to answer.

Air. S pringer. I didn’t say what was said. I said, “Did you?”

Air. Landis. I must decline to answer it, if I may.

Air. Springer. I take it the inference is t hat you did talk to him?

Air. Landis. I must decline to draw any inference.

Air. Springer. Air. Chairman, I ask for a response to my question.

The Chairman. Well, o f course, Dean L andis has testified that he 

represented the administration and as special assistant to the Pre sident that he is here testifyin g in behalf of the executive branch of 

the Government.

No, I think the rule, as the gentleman recognizes, is that anyone who 

is representing the President, as he has indicated, in this manner, 

when called upon to divulge any conversation he had with the Pre sident without clearance from the President-----

Air. Springer. I didn’t ask for that.

The Chairman. The Chair is giving a response to what the gentleman asked for.

Air. Springer. He hasn’t given response to my question.
32 REORGANIZATION PLANS 1 AND 2 OF 19 61

The Chairman. The gentleman has declined to give a response to 

the question.

Mr. Springer. I haven’t asked for any confidential statement of the 

President himself. I haven’t asked that at all.

The Chairman. Well, the Chair would have to rule that if the 

gentleman does not want to testify as to whether or not he h ad a conversation with the President, I think that is within his prerogative.

Mr. Springer. Will the record show tha t I take exception to the 

ruling of the chairman ?

The Chairman. Very well.

Air. Springer. Dean Landis, do you know whether or not Mr. 

Minow was at the White House conversing either with the President 

or any of his assistants?

Mr. Landis. I don’t happen to know.

Mr. Springer. You have formerly been a member of the CAB and 

the Securities and Exchange Commission ?

Air. Landis. Tha t is right.

Mr. Springer. From your understanding of these regulatory agencies, from whom do they take their authority ?

Air. Landis. I would say from the Congress.

Air. Springer. I s there any question about that ?

Air. Landis. No ; I have no quest ion along that score.

Air. Springer. Do you feel tha t it is the duty of the Commission 

to look to the President or to the Congress for the solution of their 

problems ?

Air. Landis. Well, I would say this, Air. Springer, that the prime 

duty of the Commission is, first, to look to the law and see what its 

responsibilties are under the statutes. If they feel that the law is 

unclear or tha t they need some strengthening, they again look to the 

Congress. They don’t look to the President for a change in the law. 

They look to the Congress for a change in the substantive law.

Air. Springer. Actually, the powers which we have given them by 

statute were powers that originally belonged to the Congress and were 

subject, to the jurisdiction of this committee. Is tha t correct?

Air. Landis. That is correct.

Air. Springer. The review suggestion which you are in substance 

making, Dean Landis, in this reorganization plan, is practically the 

same tha t the Supreme Court would have to review by certiorari or 

otherwise an appeal by an ap pellant to the Supreme Court.

Mr. Landis. Very much the same. There is one substantial difference, namely, the Supreme Court cannot review the decision we will 

say of a U.S. court of appeals if it wants to unless there is a petition 

tha t has been filed by one of the litigants. Here the Commission can 

reach down any time it chooses, whether or not the liiti gan t wants it 

to, and review any action on its own initiative. There is tha t substantial difference. Otherwise, I think -----

Air. Springer. Do you ever remember an instance where you as a 

member of the Commission reached down for a bill of exception to 

what was filed and took a case up for review ?

Air. Landis. I can’t remember an instance of tha t type because it 

never would have occurred durin g the time th at I was on these Commissions, because no such system of review existed.

Air. Springer. I s the Commission a quasi-judicial body ?
REORGA NIZATION PLAN S 1 AND 2 OF 1961 33

Mr. Landis. Yes, sir; in many respects, not in all respects, quasilegislative in other respects.

Mr. Springer. Put ting those two together, that is about 100 per ­

cent what it is. It is a quasi-body ?

Air. Landis. Yes.

Air. Springer. I)o you think in a quasi-judicial or quasi-legislative 

body th at the power of an appellant should be cut off from review by 

the full Commission ?

Air. Landis. I think it should.

Air. Springer. You think it what ?

Air. I jAndis. It should in the discretion of the Commission.

Air. Springer. It should be cut off? Did I hear you correctly?

Air. Landis. The power of appeal, you said ?

Air. Springer. Yes.

Air. Landis. I think it should, just as in many courts you can’t 

go above the nisi p rius judge. You have no rig ht of appeal in many 

instances.

Air. Springer. Would you name in the State court of Illinois an 

instance where there is not an appeal ?

Air. Landis. I wouldn't be fam iliar with Illinois.

Air. Springer. Let’s take Massachusetts.

Air. Landis. Oh, yes. In many of these smaller cases, cases where 

the jurisdictional amount isn’t high enough, you get one crack at it, 

and that is all.

Air. Springer. Those are instances where they are below $25 though, 

aren’t they ?

Air. Landis. I think it goes a little higher than that.

Air. Springer. But are you comparing the righ ts which an appellant has in a Commission of this sort as the same type as the righ t of a 

person who has $25 to $50 involved ?

Air. L andis. In many instances, that is true, particularly with the 

Federal Communication Commission. In many instances where there 

are tines of $100 or $10 and those things have to be heard by the full 

Commission-----

Air. Springer. Do you believe that is what the Commission has in 

mind in this language that is set out in this Reorganization Act?

Air. Landis. I couldn’t tell you what the Commission had in mind, 

but I would say th at the language looks toward such a differentiation 

of important from unimportant cases.

Air. Springer. Then why wasn't that set out in the act? Why were 

not the things which the Commission did not intend to delegate, the 

matters such as an appeal of an appellant, we will say, between several of them over a case involving a television station or a radio station, why were not those instances set out over which he does have an 

absolute right of appeal before the Commission for full review by the 

Commission ? Why were those not set out ?

Air. Landis. Because I think Air. Springer, tha t decision can best 

be made by the Commission and it can be not only made in the first 

instance, but reviewed again and again in the light of the experience 

of the Commission, and I think tha t is a better way to reach the right 

standard here than to try to write it in advance.

Air. Springer. Is it your though, Dean Landis, tha t only insignificant things are the things on which the Commission is going to abrogate its a uthority?
34 REORGANIZA TION PLANS 1 AND 2 OF 196 1

Mr Landis. I should hope so, only the minor things.

Mr. Springer. Have you had any assurance from the Commission 

or from the Chairman of the Commisison th at tha t is what he has in 

mind?

Mr. Landis. I assumed that is what he had in mind.

Mr. Springer. Have you ever asked him that ?

Air. Landis. Yes, I am sure I asked him about the minor things t hat 

clutter up I he desk of the Commission. 1 had a chance to look at the 

agenda that comes before the Commission and have seen the mass of 

stuff t hat comes there which seems to me unnecessary to reach tha t 

high level for disposition.

Mr. Springer. Dean Landis, under sections 1 and 2, do you visualize 

that it would be possible or not possible for the Commission to delegate 

to the Chairman for, in turn, delegating to whomever he wanted to, all 

of the powers which the Commission now has ?

Mr.l jAndis. No. I do not see that th at is possible.

Mr. Springer. Wha t makes you think it is impossible ?

Mr. Landis Ijetussee. Theoretically, it might be done.

Air. Springer. May I just ask you theoretically-----

Air. L andis. I would like to correct my earlier remark. I am saying, as a matter of theory, tha t under a reorganization plan of this 

nature it would in theory be possible for the Commission to delegate 

its functions to the Chairman.

Air. Springer. Just a moment.

Air. Landis. But they must be performed by the Chairman now.

Air. Springer. Just a moment. Would you read tha t answer back 

please ?

(The answer referred to was read by the reporter.)

Air. Springer. Now, this question: if the Commission so saw fit, 

it would be possible, in effect, to make this a one-man Commission?

Mr. Landis. I do not think so.

Air. Springer. Go ahead.

All-. L andis. Because, as I said before, these functions would have to 

be performed by the Chairman and it would be humanly impossible 

for him to do it, and I said what I had in mind when I made tha t 

answer was the sections of the Administrative Procedure Act that provides tha t adjudicatory matters must lie handled by a member of the 

Commission, commissioners or a hearing examiner. Those functions 

that might be delegated to the Chairman to perform personally could 

not be redelegated by him to a hearing examiner. This plan does not 

authorize that kind of thing.

Air. Springer. It does not authorize him to delegate powers which 

are in turn delegated to him ?

Air. Landis. No, it does not authorize him to do that, under those 

functions, you see, must be performed by Commission members, the 

Chairman, or hearing examiners. You could not delegate the handling 

of an adjudiciatory matter to a person who was not the hearing 

examiner because the Administrative Procedure Act prevents you 

from doing it.

Air. Springer. However, they may delegate to him all of the power 

that they have i f they so wish under these sections.

Air. L andis. Yes.

Mr. Springer. I am just asking you if tha t is possible under this 

language ?
REORGANIZATION PLANS 1 AND 2 OF 19 61 35

Mr. Landis. Theoretically it is possible.

Mr. Springer. All right.

You say he cannot, in tu rn, take that power and delegate it to other 

people ?

Mr. Landis. No, I do not think he can.

Mr. Springer. Dean Landis, I wish I could agree with you. I do 

not think I am as good a lawyer as you are, but I have sat on the 

bench and adjudicated some problems, and if this language is true in 

response to your answer, the question which I put, I am going to be 

very, very surprised.

Air. Landis. Could I refer you to a case in the Supreme Court of 

the United States on that? Tha t is the Cudahy Packing Co. case. 

I do not have the citation at my fingertips, but I will be glad 

to supply it, and tha t deals with the problem of subdelegation or redelegation of a delegated authority, and the Supreme Court is pre tty 

4

 careful on that kind of thing.

Air. Springer. 1 would like to have tha t if you would care to supply 

it for me.

Air. Landis. I would be glad to.

Air. Springer. Because this is undoubtedly going to arise in the 

Congress, this very question, of what is being done with the autho rity 

tha t it can possibly be delegated to the Chairman.

(The case referred to is as follows:)

Cud ah y P ac ki ng Co. of Lou is ia na , v. Hol la nd , 315 U.S. 357, 62 S. C t. ; 651, 86 

L. E d. 895 119421.

Air. Springer. Are you fam iliar with the first draft of the reorganization plan?

Air. Landis. The first draft of this plan ?

Mr. Springer. Yes.

Mr. Landis. Yes, sir.

Mr. Springer. Wh at did it contain other than this?

Air. L andis. It contained provisions tha t perhaps spelled out more 

clearly the powers of the Chairman tha n they are spelled out in section 5 of the Communications Act.

Mr. Springer. What other powers did tha t original plan give that 

this plan does not have?

Air. Landis. Primarily a power on the p art of the Chairman to deal 

with the allocation of funds for the different activities of the Commist sion.

In other words, he could allocate funds as between different activities of the Commission.

Mr. Springer. Did you say funds only ?

* Air. Landis. That was prim arily the additional thing tha t was

spelled out.

Mr. Springer. He did not have any additional powers under tha t 

original plan?

Mr. Landis. There may have been some other kind of power, but, 

generally speaking, apa rt from this power, which was the important 

one, it would be like section 5 of the Communications Act.

Air. Springer. You could say principally the only power tha t he 

was not given under the original plan had prim arily to do only with 

allocation of finance ?

Air. Landis. That is right.
36 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

Mr. Springer. I t was my un de rst an ding , Dean, and if you will 

clarify this, please, t hat the pla n as presently prese nte d is only abo ut 

on e-t we lfth of the plan originall y pre sen ted . Is th at about righ t?

Mr. L andis. I would say on e-third o r one-q uarter, no t one-twe lfth . 

Th ere were a gr ea t ma ny pow ers spe lled ou t fo r the Ch airm an . I 

th in k if you will tak e a look at th e rec ent rele ase of th e In te rs ta te 

Com merce Commission in whi ch they spell out the powe rs of the 

Ch airm an of th at Commission, th e firs t d ra ft follow ed th at very 

closely.

Mr. Springer. Now did th at d ra ft also ap ply to the Fe de ral Com ­

mu nic ations Comm ission ?

Mr. L andis. I do no t know wh eth er it was i n the first dra ft of the 

Fe de ral Comm unications Com mission plan or not. I kno w it w as in 

the plan No. 1, the first d ra ft.

Mr. Springer. May I ask yo u th is : Di d you come d own to discuss it 

with the chairm an of this comm ittee?

Nfr. L andis. I do no t know wh ethe r I discussed th is specific pla n. 

I certa inly hav e trie d to get th e benefit of his idea s, an d I am not 

tryi ng to impute to him an ythi ng except th at I sought th e benefit of 

his experience.

Mr. Springer. Now, did any one else come wi th you down to ta lk 

to the ch air ma n?

Mr. L andis. I do not recall.

Mr. Springer. Di d M r. Minow ?

Mr. L andis. Mr. who ?

Mr. Springer. Mr. Minow.

Mr. L andis. He may have don e so individually.

Mr. Springer. No t w ith you ?

Mr. L andis. No.

Mr. Springer. I believe th at is all, Mr. Ch airma n.

Th e Chairm an. Mr. R ogers.

Air. R ogers of Florida. No que stion.

Th e C hairm an. Mr. Yo unger .

Mr. Younger. Dean, I am sure th at I do no t have to tel l you th at 

I am not a law yer but, I mu st say yo ur answers are quite con fusing.

Origina lly , you were head of a task forc e, were you not? Th ey 

cal led it a ta sk force.

Mr. Landis. No, I was no t head of a tas k force. I was requested 

by the Preside nt- ele ct to exa min e th is en tir e sit uatio n. There was 

nob ody else appo int ed or deleg ate d to do th at excep t myself. I did 

ge t assista nce fro m othe r people.

Mr. Younger. Were the repo rts in the newspaper, corre ct whe n 

they said th at you ha d reco mmended a cza r to be establ ished in the 

executive de pa rtm en t overseeing the regu latory agencies?

Mr. Landis. No, the y were no t correct. Th ey were fa r fro m 

correct.

Mr. Y ounger. T o wh at e xten t were th ey not corre ct ?

Mr. Landis. Th ey were no t correct because my rec om menda tion s 

were sim ply a recom mendation to establish in the Office of the Pre si ­

de nt an individu al, an office, which wou ld oversee—I th in k the 

wo rd was chosen w ron gly on my par t—which would oversee the o pe ratio ns of these ad minist rativ e agencies and br in g to th ei r attention or 

to the attention of the ap pr op riate au tho rities , Congress or oth er-
REORGANIZATION PLANS 1 AND 2 OF 19 61 37

wise, lags in the process, the logjams tha t were occurring, and suggestions as to how to deal with these.

I had in mind something very similar to the Administrative Office 

of the U.S. Courts where that officer watches the flow of business 

throu gh the various courts and tries to assist them in dispatching the ir 

business or bring matters to the attention of the Judicial Conference 

for amelioration and the like. I do not think tha t is being a czar in 

any sense of the term.

Mr. Younger. Why did you abandon tha t plan ?

Mr. Landis. I have not abandoned it. I still think it has got the 

seeds of a good idea in it.

Mr. Younger. Well, it is not a pa rt of the reorganization plan, 

is it?

Mr. Landis. No, it is not a par t of this plan.

Mr. Younger. Under the reorganization plan, is it your idea tha t 

there should still exist in the executive dep artment an overseer?

Mr. L andis. Certainly not under this plan. There is no suggestion.

Mr. Younger. No, but is it your idea tha t it would be well to still 

have an overseer in the executive department ?

Mr. Landis. Well, I thin k perhaps tha t with the establishment of 

the Administrative Conference of the United States, those functions 

could perhaps be best performed by that Conference, and it might be 

unnecessary to create this additional office.

Mr. Younger. If it were p ut into effect, would not tha t remove the 

regulatory agencies pretty much from the control of the Congress?

Mr. Landis. I do not th ink so because the Administrative Conference is really under the control of the administrative agencies themselves and they would just have somebody there tha t would watch, 

just as the Administrative Office in the Department of Justice now 

watches the progress of business in the various agencies. Th at is being 

done today.

Mr. Younger. The courts are not under the jurisdiction, of the 

Congress. They are a separate and independent branch, like the legislative branch, the same as the executive is, but as I understand in 

your answer before to questions by Mr. Springer, you held tha t these 

regulatory agencies were arms of Congress.

Mr. L andis. Tha t is right.

Mr. Younger. Then if they are arms of the Congress, how can you 

put somebody in the executive branch to oversee them ?

Mr. L andis. I also take the position that these administrative agencies are called upon to enforce the laws of the United States, the laws 

that are passed by the Congress, and t ha t being so and the Constitution placing upon the President of the United States a duty to see tha t 

the laws are faithfully executed, not to change the laws but to see that 

the laws are faithfully executed, he has to keep his eye on just how 

well these outfits are performing.

Mr. Younger. Well, it seems to me, just as a layman, tha t w hat you 

are trying to get is a control of the regulatory agencies and you wTere 

not able to get in your plan of having somebody in the executive office. 

Apparently tha t idea died or was abandoned for some reason and the 

reorganization plan was substituted. But I am rath er convinced by 

your testimony and the reorganization act tha t you are attem pting 

to accomplish exactly the same thing by putting all the power in the
38 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

Chairman of these Commissions with the Chairman designated by the 

President and the executive would accomplish exactly the same thing 

as you originally had in mind by putting a so-called czar in the executive branch. I cannot get away from tha t idea, Dean. I am not 

a lawyer and I cannot see throu gh all of these ramifications, but I 

think I can see and follow a line of direct authority, and I am sure 

in my own mind tha t you still have that idea of a czar in mind and 

this reorganization plan has t ha t same thought, but in a more subtle 

and roundabout way.

Mr. Landis. I will deny that. There is nothing subtle in this reorganization plan, and the one single point on which it increases the 

power of the Chairman is simply tha t he is given this new responsibility which he did not have before of assigning the personnel of the 

Commission to the various tasks tha t the Commission itself had indicated should be done.

Mr. Younger. You just said a while ago that this reorganization 

plan did not assign a new function of any kind.

Mr. Landis. It transfers.

Mr. Younger. Tha t which was not existent in the present law.

Mr. Landis. It transfers.

Mr. Younger. It gave them a new function, is what you just said.

Mr. Landis. Well, it gives the Chairman a new responsibility. 

That is true. But I do not regard tha t as any violation of section 5, 

subsection 4 of the reorganization act.

Mr. Younger. Are there any functions provided in the reorganization act that could not be accomplished by a Chairman of a Commission under the present law ?

Mr. Landis. I just could not quite understand that question. 

Could you read it back and maybe I could.

(The question referred to was read by the reporter.)

Mr. L andis. If I understand your question, I do not see th at there 

is the imposition upon this agency of new functions, except in the 

distribution of the responsibilities within the agency of certain functions.

Mr. Younger. Let me put it another way, Dean.

If you were Chairman of the Federal Communications Commission 

now and you wanted to accomplish all the things that you claim will 

be accomplished under this reorganization act, could you accomplish those things?

Mr. Landis No, I could not.

Mr. Younger. Why?

Mr. Landis. Because there are certain functions tha t have to be 

abolished in order to accomplish it.

Air. Younger. Then there are functions provided in the present 

law that are abolished ?

Mr. Landis. Yes.

Mr. Younger. Then how can you reconcile th at with what it says 

tha t no reorganization plan shall authorize any agency to exercise any 

function which is not expressly authorized by the law at the time the 

plan is submitted to the Congress?

How do you reconcile those two statements, Dean ?

I am not a lawyer, but I cannot reconcile those two statements in my 

own mind at all.
REORGA NIZATION PLANS 1 AND 2 OF 196 1 39

Mr. Landis. I do not th ink the abolition of a function is necessarily 

the creation of a new one. The Reorganization Act in section 2—no, 

sction 3, paragraph 6, specifically authorizes the abolition of the whole 

or any pa rt of any agency—no. 1 meant paragraph 2—the abolition 

of all or p art of any functions of the agency. That specifically authorizes you to propose a reorganization plan which does that.

As I said before, you do abolish a function and also create the authorization to delegate which is specifically provided for by subsection 

5 of section 3 of the Reorganization Act. Tha t authority derives from 

the Reorganization Act which certainly the Commission and the Chairman do not possess at the moment.

Mr. Younger. Could you accomplish tha t by amendment to the 

present Communications Act ?

Mr. L andis. Oh, yes, you could accomplish anything tha t is in this 

reorganization plan by statutory amendment.

Mr. Younger. Why was it not done by th at process rat her than the 

reorganization process ?

Mr. Landis. Tha t is a matter of choice, I guess.

Mr. Younger. Choice of whom ?

Mr. Landis. I suppose the administration. Congress has granted 

those powers.

Mr. Younger. Just one other question.

You say that none of the reorganization plans have been tested in the 

courts, as I understand it ?

Air. Landis. There is nothing in the reorganization plan which-----

Air. Younger. None of the reorganization plans t ha t have been put 

into operation by approval of the Congress heretofore have ever been 

tested in the court? Nobody has contested them ?

Air. Landis. No, none of them have.

Air. Younger. That is what I understand.

In other words we are operating very much as we were before the 

“Humphrey decision.” The President used to call for resignations, 

and even though a man was appointed for a definite term he resigned, 

until Air. Humphrey came along and contested th at theory. The Supreme Court found the President could not demand a resignation from 

one who was appointed for a definite term.

Is there any doubt in your mind that if this reorganization plan goes 

through, that it will not be tested by the court?

Air. Landis. I do not know whether it will be tested or not.

Air. Younger. I s there any doubt in your mind but what it will be 

tested ?

Air. Landis. I think it will survive a court test without any question.

Air. Springer. V*'ill you yield for two questions?

Would you supply fo r the record at this point a copy of the first plan 

tha t was under discussion which I mentioned in my questioning a few 

moments ago ?

Air. Landis. I do not know whether I can do that.

Air. Springer. Alay I put it this wa y: Will you ask the Presid ent if 

it will be all right to submit the plan for the record before this 

committee ?

Air. Landis. I can tran smit your request, certainly.

Air. Springer. And if he says all righ t, then you will?

Air. Landis. Of course.
40 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

Mr. Springer. Dean Landis, this subcommittee is in essence, a 

successor to the Legislative Oversight Subcommittee of this same 

committee in the last two Congresses. I think we have rule of thumb 

that any contact by the executive department with an agency was 

“influence.” Do you understand what I said? I want to be sure 

you understand what I said before you answer any other questions.

Mr. Landis. Yes.

Mr. Springer. If we apply tha t same rule in this subcommittee to 

contact bv the executive department tha t was applied in the 85th 

and 86th Congress, it would be said that the executive department 

was applying influence to this agency, would it not?

Would you like tha t question read back?

Mr. Landis. I would like that question read.

Mr. Springer. Would you read tha t question, Miss Reporter, 

please ?

(The question referred to was read by the reporter.)

Mr. Landis. I do not believe you quite mean that, Mr. Springer, 

tha t any contact with an administrative agency would be applying 

influence.

1 quite agree with you tha t any effort to influence, except openly 

and in court, a regulatory agency with regard to an adjudicatory m atter would be wrong. I simply need to refer to the President’s message of April 13, I believe it is, where he enunciates tha t rule very, 

very plainly.

Mr. Springer. In your contacts with the members of the Commission, were not you attem pting to influence them in effect on this plan?

Mr. Landis. I would not regard tha t as an adjudicatory matter.

Mr. Springer. But you are influencing. Tha t is an adjudicatory 

matter. That is influence upon the course of which this Commission 

is going to pursu e; is it not ?

Mr. Landis. I do not believe you think that, Mr. Springer, that 

you cannot talk with an agency and suggest certain changes in the 

procedures that are followed tha t has not reference to any p articula r 

case and not discuss it with them and perhaps try to persuade them 

to your point of view.

Mr. Springer. And are not you doing tha t? Not in open court but 

are you not doing that privately with these people?

Mr. Landis. I do not say that is a matter that should be done in open 

court.

Mr. Springer. You do not? Do you not think that there ought to 

be other people who would have right—who are interested in the industry—to present their views upon changes in this the same way ?

Mr. Landis. I assume they will.

Mr. Springer. And have opportunity to present their views? Have 

they?

Mr. L \ndts. To whom ?

Mr. Springer. To the Commission.

Mr. Landis. To the Commission ?

Mr. Springer. Yes.

Mr. Landis. Oh, I think this has been a subject of general inform ation for a long, long time.

Mr. Springer. Could you name any hearing tha t has been set for 

the Commission where the change with reference to reorganization is
REORGANIZATION PLANS 1 AND 2 OF 1961 41

the same as is pro vid ed when you change a rule of the Com mission 

in which you giv e notice ?

Mr. L andis. We ll, I un de rstand th at there are he arings scheduled 

on these reorga niza tio n plans.

Mr. Springer. T hat th ere have been heari ngs?

Mr. L andis. Tha t t here are h ear ing s.

Mr. Springer. Before the C omm ission ?

Mr. L andis. No t before the Com mission. Be fore the Con gress.

Mr. Springer. Be for e the C ongress?

Mr. L andis. Yes.

Mr. Springer. Bu t there was no op po rtu ni ty to presen t any cou nter suggest ion s by the indu stry or othe r int ere ste d person s and no op ­

po rtun ity to presen t t he ir views to this Commission as you did as the 

representat ive of the executive depa rtm en t?

Now, am I ri ght or wrong ?

Mr. L andis. I do not know wh eth er the re were othe r people th at 

presen ted th ei r views.

Mr. Spring er. When Mr. Min ow testifies we can find out.

Mr. L andis. I do know t hat I hav e d iscussed the the ory th at un de rlies these plan s no t only wi th people wt hin the Go vernm ent bu t people at the bar, a gr ea t ma ny people, to ge t th eir view s on it.

Mr. S pringer. T hat is all.

Th e C hairm an. Di d you discuss it with people in the indu str y?

Mr. L andis. Ye s; I hav e discussed it with people in the indu str y.

Mr. Moss. Mr. Ch air man.

Th e Chairm an. Mr. Moss.

Mr. Moss. I wan t to ma ke it very cle ar th at in the course of the 1 

years of the existence of the Ov ersig ht Comm ittee th at there was no 

“rule of th um b” t h at d iscussions betwe en the Commission and th e exe cuti ve de pa rtm en ts ever impli ed “influe nce” unle ss it was on a m atter 

pend ing before the Com mission as an ad judi ca to ry pro blem, and I 

would point o ut------

Mr. Springer. W ill the gentlem an yie ld ?

Mr. Moss. No ; the gentl em an wfill not yield un til the gentl em an has 

finished.

I will po int out th at we require by law that these ag encies com mu nicate with the Ex ecuti ve in the pr ep ar atio n of budgets, a very im po rta nt par t of the functio n of thes e agencies is t o see t hat they have the 

fund s and th e per son nel to ope rate. We req uire the m to hav e the 

ap prov al o f the Bu rea u of th e Bu dget. Now, we do n ot s ay th at the y 

cannot subm it to the Congress prop osa ls which are disap proved by the 

Bu rea u, bu t we do requ ire t hat they be first subm itted to the Bu rea u. 

We also req uir e that, o f ce rta in forms an d othe r thi ngs. In re ga rd to 

action tak en by the Con gress, in the r eo rgan iza tio n act, f or th e benefit 

of the g entlema n—and I will yie ld to him l ater —I s erved on th e com ­

mi tte e which repo rte d th e las t three am end me nts to the reor ga niza ­

tio n act. Th e act itself say s th at the Pr es id en t sha ll exa mine fro m 

tim e to tim e the orga nizatio n of all agencies of the Gover nment and 

shall determ ine wha t changes there in are necessa ry to accomplish 

the fol low ing pu rpo ses, an d then enume rates the purposes; an d it sa ys 

wdienever the Pr esiden t, aft er investigatio n, finds—a nd then again 

enu merate s.

I do not th ink th at the Congres s pa rtic ip at in g in the dra ft in g of 

th is eve r env isio ned an ar m ’s-length de ali ng in disc ussion of these
42 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

things whi ch the Pr esiden t is dir ected to do. I do no t wa nt th is 

record to show that a discussion of ad minist rativ e pro ble ms u nd er th e 

law as it now exists is an exert ion o f influence, im prop er o r otherwise. 

Now I will be happ y to yi eld to the gentlem en.

Mr. Springer. 1 will sta nd on the reco rd. Th e gentl em an fro m 

Cal ifo rn ia was t he most severe criti c of conta ct by th e Ex ecuti ve w ith 

any agency, and I will tak e it th at he is the one or igin ally who said 

the rule of thu mb is any conta ct wi th an agency is “influence.”

Mr. Moss. I would wager th at the gentlem an cann ot pro duce th at 

quote.

Mr. S pringer. I will le t the record re st on wha t it is.

Mr. Moss. I will ask the gentlem an fo r my bene fit to give me the 

quote.

Mr. Springer. You were te ou tstand ing ex ponen t of th at th eory.

Mr. Moss. Because the words I used in the instan ce of Mr. Ad am s 

firs t were to say th at you, sir, first have laid dow n th e rule in yo ur 

discu ssion s. I prefa ced my remarks to the good Go vernor in th at 

sta tem ent, a nd hi s inte rventio n was in a m at te r then in dispute before 

the Com mission.

Mr. Springer. T hat has no t been the position of the gentlem an 

fro m C al ifo rn ia at all.

Mr. Moss. The gentlem an s tan ds on his p osition an d the gen tlema n 

fro m Ill inoi s has inc orrec tly in the extrem e sta ted the position of the 

gentlem an from Cali fornia.

Mr. Springer. I will let th e rec ord sta nd. Th ere ha s been no more 

severe critic of conta ct of agencies th an the gentlem an fro m Ca lifo rnia.

Mr. Moss. In his own subcom mittee, exte nsiv e hearings —and I 

rem ember Mr. Sinc lair Arm stro ng c oming b efo re the com mittee an d 

tryin g to place him sel f in a po sition where he fe lt it was pr op er to 

seek th e advice of the Atto rney Gener al on matters t he n in ad judica ­

tio n before the Commission. Tha t I challenged. B ut af te r all, the 

Pr es id en t appo int s the g entlem en. We have g iven h im that a utho rity 

and I hop e again in sele ctin g them t hat it is no t an ar m ’s-length pr ocedure. I th in k he sho uld kno w them, hav e some ide a of th ei r compete nce, some measure of th ei r cap abi lities. I f he does not, he has 

no t pro pe rly d isc harged his responsibilitie s.

Mr. Springer. Could I ask th e gentlema n a q ues tion ?

Mr. Moss. I yield to the gentlema n.

Mr. Springer. I f this same reo rgan iza tio n plan h ad been subm itte d 

in the Eisenhow er a dm inist ratio n, would he have supp orted it ?

Mr. Moss. I ha d no t ind ica ted wh at I intend do ing now. I am 

merely taki ng exception to th e gentl em an’s rule of thum b which is 

one wh ich I th in k he has fabr icated at th is tim e an d it has nev er 

before been state d.

Mr. Springer. W ill the ge ntl em an ju st answer the question ?

Mr. Moss. Th e gentlema n does n ot propose no w to giv e to the ge ntl ema n fro m Ill inois an indicatio n of wha t he has no t ye t concluded. 

I do not know wh eth er I will sup po rt it.

Th e Chairman. Gentlem en, may the Cha ir k indly sug ges t th at we 

re tu rn to the pla ns an d tr y to ana lyz e thes e propose d reo rganiza tio n 

plans?

Mr. Moss. Mr. Ch air ma n, it ap pe ared fo r a few moments th at we 

were her e f or the purpose of a p olitica l battle.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 43

The Chairman. The Chair believes and hopes we will make a 

record on what the committee would like to do, if anything, with 

reference to the reorganization plans, and I propose that we proceed 

for those purposes.

Mr. Rogers of Florida. Mr. Chairman, I have just a quick statement. As I say, I don’t know what I w ant to do on this either. But 

I must say tha t I would disagree with any charge of influence in a 

matter of this type, and I feel th at is a rath er extreme statement and 

I would not want the record to show that, either.

Also, as I understood the testimony this afternoon, Dean Landis, you 

feel th at some of the procedures that have been put into effect for instance in the I nterstate Commerce Commission are advantageous and 

perhaps could be used in some of the other Commissions by allowing 

the Chairman the right to delegate certain powers and divide the Commission into panels, and also to delegate some authority where minor 

matters that are cluttering up the working of the Commission could 

be handled expeditiously. Is tha t your basic objective?

Mr. Landis. That is the basic objective, yes.

Mr. Rogers of Florida. Thank you very much.

Mr. Bennett. Mr. Chairman, I have raised a question as to whether 

this reorganization plan amounts to influence, and whether a contact or discussion by Mr. Landis with him with a Commissioner 

amounts to influence. I personally doubt tha t tha t could be said to 

be influence.

I think as long as that question has been raised, though, we ought 

to a t least get the record in its proper perspective as to what your relationship would be, and is, as a member of the White House staff 

with respect to these agencies.

In line with this recommendation you made earlier last fall afte r 

the election and what is likely to happen as a result of it.

Now, you mentioned that there ought to be an overseer in the 

White House as far as regulatory agencies are concerned. You said 

tha t the President has the duty of enforcing all of the laws, and so 

it is proper to have someone in the White House breathing down the 

neck of these agencies to see whether they are enforcing the law. 

Maybe th at is right, but will you give me one illustration of what an 

officer in the White House such as you suggest would do in respect to 

one of these agencies on the question of whether or not they were enforcing the law ?

Mr. L andis. Yes, I can easily give you that. I would be interested, 

for example, in the time it takes to dispose of various different types 

of business, and if that time is unduly long, the old maxim tha t justice delayed is justice denied comes into operation. I think it is the 

business of the executive to watch all branches of Government, and to 

see that they effectively dispatch their business. Unfo rtunately, as 

I looked at the scene last December-----

Mr. Bennett. Before you leave that, then would you consider it 

proper for this officer at the White House to call the Chairman of 

the Federal Communications Commission, or some other Commission 

and say “Now, Mr. Chairman, here is case X. It has been down in 

your place for a year and a half. Wha t is the trouble? Why hasn’t 

a decision been made ?”
44 REORGANIZATION PLA NS 1 AND 2 OF 19 61

Would you consider th at to be a p ro pe r function of the officer?

Mr. L andis. I dou bt th at , with rega rd to case X, bu t if you say 

“H ere is a catego ry of cases th at do n’t seem to be moving, is there 

som ething wrong th at keeps those cases from moving,” th at I think 

is a very im po rta nt thing fo r the Ch ief Execu tive to know.

Mr. Benn ett. Well, w ould you con sider it pr op er f or this officer to 

call fo r a Commission file in a case th at h ad been ad judicated or was 

in the process o f being adjud ica ted , to determ ine w hethe r the law was 

being prop erl y enforced ?

When is the law bein g enforced, th at is qui te a broad que stio n in 

itse lf, is it not?

Mr. L andis. I t is a bro ad question. I hav e seen very fre quently 

th at a pa rticul ar case is sticky, an d it is difficult to decide, or someth in g holds it up.

Now, those thin gs ha ppen in co urt a nd in a ny agency, bu t w hen you 

find a catego ry of cases th at you th in k should be disp osed of within 

a reasonable time and t hey are n ot bein g d ispo sed of wi thin a reason ­

able time, I think the n one sho uld look at it an d seen wh at can be 

done.

Air. Benn ett. I fra nk ly th in k th at you are ge tti ng dow n to very, 

very th in ice, when you sug gest th at there be an officer in the Whit e 

Hou se or in the ex ecutive de pa rtm en t looking af te r these agencies to 

see wheth er th ey enforce the law.

Regar dless of how circ umspect you may be, an d th is is no t a question of bringing up the pr op rie ty of any body’s motives or conduct, 

bu t when somebody in the W hite Hou se close to th e Pr esiden t, one 

of his assista nts, con tacts a Com missioner, as Air. Aloss was talking 

about a few min utes ago—w hen he con tacts a Com missioner or the 

Ch airm an o f a Commission or a m ember of the C ommission and says 

“H ere is wh at we would like y ou to do,” wh at is t hat p oor guy goi ng 

to say ? Is he going to disagr ee? Is he likely to disagree very 

vio len tly with an emissary of the Pr esiden t ? Tha t is the very questio n t hat we raised in the S herm an Adams case.

Air. L andis. I t is not tfie questio n.

Air. Bennett. I t is no t a question of who agr eed with him. The 

mere fact th at a presidential assistan t make s an inq uir y about a case, 

even abo ut its sta tus , implies to the per son th at he is talking to, the 

Com missioner or mem ber of th at Comm ission th at the AVhite H ouse 

ha s an inte res t in the outcome o f t hat case. Is tha t not t ru e ?

Mr. L andis. I would n ot say so.

Air. Benn ett. You would no t say so?

Air. L andis. No, sim ply ma kin g an inqu iry as to the sta tus of a 

case, a nd th at is all------

Air. Benn ett. You th in k it is all righ t fo r the officer th at you 

sug ges t in the AVhite H ouse to be calling the Comm ission and ma king inquiries about th e status of cases ?

Air. Landis. I see no reason, because you could find out the sta tus 

of the case by goi ng to th e public files.

Air. Benn ett. Tha t is not what I asked you.

Air. Landis. I f you asked someone to do it fo r you, because the 

public files are nearer the re, I don’t see t hat there is a ny thing wrong 

there.
REORGANIZATION PLANS 1 AND 2 OF 19 61 45

Air. Bennett. You think it would be proper fo r the overseer to be 

making these inquiries?

Air. Landis. That astounds me, because you are asking only for 

public information, information that is public.

Air. Bennett. Don't you see any significance or any impact when 

a White House staff member calls a Commission member and asks 

him about the status of a partic ula r matter tha t is pending?

Air. L andis. In what way? You certainly are not saying “I would 

like to have you decide it this way or tha t way,” and there is no implication of that. It is just what is the status of the case.

Air. Bennett. How long before you decide it ?

Air. Landis. I just want to know where it is.

Air. Bennett. There is nothing wrong with that. Is there anything else that you think the officers could ask him about the case?

Air. Landis. I certainly don’t think tha t he should suggest how that 

, case should be disposed of.

Air. Bennett. 11 hink we would all agree on that.

Air. Aloss. Will the gentleman yield?

Air. Bennett. I will in a moment.

Do you think that there is anything else tha t this officer could 

properly discuss about a contested case with the Commissioner?

Air. Landis. Very little, I think. I think very little because he 

should be extremely circumspect so as not to give any indication as to 

what disposition should be made of a case of tha t nature. He should 

be very circumspect.

Air. Bennett. Do you think that he should make an appointment 

for somebody to see a Commissioner about a case, to see what is holding it up ?

Air. Landis. I certainly do not.

Air. Bennett. Do you think it is right for him to inquire about 

delays ?

Air. Landis. He can inquire what the status is, and tha t may be an 

inquiry about delays.

Air. Bennett. Do you think it would be right for the officer to 

make an appointment for some interested p arty to go down and talk to 

the Commissioner about delays ?

Air. Landis. About delays as a whole?

Air. Bennett. Yes.

* Air. Landis. In a general category of cases ?

Air. Bennett. Yes.

Air. Landis. Well, if for example, some individual has studying 

one of these Commissions, and he was making a study of it, I should 

t think it would be perfectly all right to call the Chairm an and say

“Here is professor So-and-So, and he would like to make a study of 

your agency, and I hope you can assist him in that manner.”

I see nothing wrong in tha t.

Air. Bennett. You would not express an opinion on a controversial 

case?

Air. Landis. Oh, no.

Air. Bennett. But you would allow considerable latitude in this 

overseer at the White House making an inquiry about the Commission’s business, whether they are doing a good job or a poor job in 

getting it done ?

73 53 1— <51------4
46 REORGANIZATION PLANS 1 AND 2 OF 19 61

Air. L andis. I think the relatio nship is alw ays one of tryin g to examine the governmental mec hanism and see wh eth er or not there are 

improvements possible. I certa inly know when I was on th e Securities and Exchange Comm ission and on the Civ il Ae ronauti cs Board , 

I sought the advice of mem bers of th is com mittee very fre quently 

with reference to certa in problem s, and no t indiv idu al problem s, bu t 

prob lems of dela y, and change s in the substan ce of the law an d the 

like. Ce rta inl y you would like to ge t the experience o f men w ho have 

th at experience so as to enlighten y ou and see w ha t can be d one about 

these ma tters. I hope th at relati on ship between this com mittee and 

the members of the Commissions end ures, because I th in k it is a very 

im po rta nt relationship. You can help the Commissions ju st as the y 

can help you.

Mr. Ben nei t. I th in k if you are talk in g about leg islative ma tters, 

1 thin k t hat 1 agree with you t horou ghly.

Mr. L andis. 1 am talking about legisla tive ma tters.

Air. B enn ett. Tha t may be different. We ll, is you r job goin g to be 

to make these contacts, wh ate ver con tacts are made in th is overseer 

cap acity ?

Air. I j AN DI S. No, I w ouldn’t sa y so.

Air. Benn ett. Ar e you going to be the overseer of the agencies?

Air. L andis. I do n ot know w hethe r th ere is goi ng to be one.

Air. BENNE rr. Well, are you g oin g to be the man in the W hit e House 

who is g oin g to see tha t these agencies are enfor cin g the laws?

Air. Landis. Well, my ap po int me nt at the pre sen t tim e was an ­

nounced as bein g tem porar y. I hope it will be.

Air. Ben nei t. While you are the re, a re you going to be th e overseer 

of th e agencies ?

Air. L andis. I am n ot the overse er of the agencies. I am exam ining 

them to see wha t ideas I can come up w ith, as to how be tte r to improve 

th eir efficiency. That is my function.

Air. Benn ett. I s your prin cipa l du ty goin g to be to form ula te reor ­

ganiz ation pla ns such as th is one fo r FC C and some of the oth er 

agencies, u ntil yo u get them re org ani zed th e way you wa nt them t o be ?

Air. L andis. I th in k probably th at th at will continu e. I am wo rking on some othe r agencies a t t he mom ent, seeing how the ir methods o f 

doing business could be improved.

Air. Benn ett. Have you tal ke d to the chairma n of this committee 

or the chairma n of the Senate committee, which has juris dic tio n over 

these reg ulato ry agencies, rega rd ing the fea sib ility of making your 

reco mmendations in the fo rm o f leg isla tive recomm endatio ns and ge ttin g them passed b y C ong ress ?

Air. Landis. I have sou ght th ei r experience, as I ind icated. Bu t 

I certa inly do no t wa nt to sug gest th at an ything here is necessarily 

th eir think ing. I hope I have benefited fro m my con tacts wi th the 

chair ma n of th is com mittee, and wi th the com par abl e Senat e committees and Ch air ma n Dawson of the Hou se Ad minist rativ e Com ­

mittee.

Air. Benn ett. Ha ve you sought advice fro m the chairma n of this 

com mittee and the ch air ma n of the com mittee in the Senate and have 

you consulted w ith the m abo ut the fea sib ilit y and advis ability of ha ndling these recommenda tion s by reorganiz ati on pla ns or by legisla-
REORGANIZATION PLANS 1 AND 2 OF 19 61 47

Mr. Landis. I do not know whether I have dealt with tha t specifically. I know I have talked generally about certain ideas and I have 

gotten the benefit of other ideas from people here in the Congress and 

people in the agencies, and people in the academies and people a t the 

bar, and all along the line. That is what you do when you study something.

Mr. Bennett. Essentially you are sitting there in your own office 

writing up these reorganization plans yourself, and they are your 

ideas, without consultation with the legislative branch in advance.

Mr. L andis. I do not feel th at I should ask anybody in the legislative branch to pu t the ir “Joh n Henry” behind a particu lar expres- 

„ sion. I do not think that tha t is what you should do.

Mr. Bennett. Well, Dean Landis, this committee and our chairman have a special committee tha t has been dealing with the very 

thing tha t you are dealing with here. I am n ot saying tha t you are 

, a novice in this business by any means, but on the other hand I don’t

think t hat our chairman is a novice or even the members of the committee are novices in this field.

And yet, afte r our 4 years and after all of the sweat and tears tha t 

we have expended on this thing, we find now tha t somebody has had 

himself appointed as a special assistant to the President and instead 

of correcting the defects of the regulatory agencies by the usual 

legislative process, we find now that you have been set up down there 

by the President to do this job yourself, and not only to do it yourself but do it without consultation-----

Mr. Landis. That is not so.

Mr. Bennett. With this committee or anybody else, apparently.

The Chairman. Will the gentleman yield to me ?

If the dean has any reluctance to state, I do not have any reluctance 

at all. Yes, Dean Landis has discussed these matters with me on 

numerous occasions, since his first designation by the President to 

make a report last November to him rega rding certain matters concerning the agencies, which I believe I reported to this committee at 

tha t time, and to Mr. Lishman. I had a conference with him one entire afternoon, in connection with the problem and furnished him 

certain information from the committee, which we felt would be appropriate.

In addition to that, we consulted with at least two committees th at 

• were set up in connection with this, and since then Dean Landis in

connection with his investigation of all of these matters has discussed 

several of them w ith me as chairman of the committee, on several occasions.

> I don’t hesitate to say tha t we have had such discussions and there

have been some consultations. I do not want to indicate, however, 

tha t I take any credit for the reorganization plan at all and I would 

say to the gentleman, I think that the dean understands pre tty well 

some of my views on a great many things affecting these matters tha t 

we have discussed very frankly. 1 would not want tha t to be any problem at all.

Mr. Bennett. I raise it, Mr. Chairman, only from the standpoint 

of whether you h ad been consulted as to the advisability of making; 

these changes by reorganization plans as against making the changes
48 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

by ap pr op riate bills th ro ug h this com mittee an d throug h the House 

of Repre sentatives.

The Chairman. We ha d discussed some of those points . We discussed very fra nk ly the r eorganiza tio n act w hich we ar e ta lk in g about 

now which—and I suggested my p reference , an d with referenc e to the 

rig ht of any pa rty on a review by oral argu men t to the Com mission 

on initial decision, we discussed th at . I told him t hat I thou gh t th at 

th at was am endin g the basic act, and it seemed to me would be more 

ap pr op ria tely ap pro ached by legislation.

We discussed section 3, the abolishing o f the review staff, an d very 

fra nk ly I thou gh t i t was am endin g th e prese nt act. We discussed th at 

very tho rou ghly, an d I again exp ressed my fee lin g th at it might be 

more ap pr op riately appro ached by am end me nts to th e act.

Th e dean , as he has tol d th is com mittee tod ay, ha s said th at the 

matter could be expedited and reache d more quickly to give the Commission leeway and au thority to begin to do some thing abo ut wha t 

we have tri ed to adv ocate over the years , and th at is the eno rmo us 

and in numerab le delays th at we have h ad down there.

So the dean an d I have discussed th at , and I sti ll have th at position, th at I w ould p re fe r to h andle th is by legislation. He know s th at. 

But the y feel th at th is is the way to expedite it, and fo r th at reason 

they proposed th is reo rganiza tio n p lan .

Mr. Bennett. I than k the chair ma n fo r his e xpression, an d I wa nt 

to say th at I agree wi th him thorou gh ly. I th in k it would be much 

be tte r to make th is approa ch th ro ug h leg islation. I say th at in the 

most kind ly way , because th ere are some of th ese th ings that th e dean 

has sug gested in th is reo rganiza tio n plan , p ar tic ul ar ly the abolishm ent 

of the so-called review’ staff and the opini on-w aiting staff th at I per ­

sonally hav e been advocat ing f or t he last 4 or 5 yea rs. I th in k it is a 

very wise an d pr ud en t th in g to do.

Bu t wha t we are talk ing about here tod ay, and I th in k wha t some 

of us are int ere ste d in here, is wh eth er wTe do th is in an orderly 

way, or wha t we rega rd as an orde rly way, or wh ethe r we do it by 

wh at I th in k is Pr esiden tia l ed ict; nam ely, writin g up the se reor ga niza tio n plan s and sen din g the m up here for us to exercise wha t wre 

call a wea k veto p ower over the veto, especially whe n they c hange the 

basic law o f t he land.

Tha t is all, Mr. C hairm an.

Mr. Moss. I ju st w’ant to take the op po rtu nity to concu r in th at 

po rti on of (he sta tem ent of M r. Bennett, th at it is m y conviction th at 

any call fro m the Whit e House inqu iri ng the status of a case is improp er, and I think th at it does ex ert influence, wh eth er or not th at 

is the intent. I sta ted (hat very definitely at the time th at Governor 

Ad am s appeare d before the com mittee and I hav e not change d my 

views at all. 1 am conv inced th at the avera ge man loo king to the 

Pr es id en t fo r appoint me nt or rea pp ointmen t, is going to be inters ted 

in exp ed iting those m atters where he know’s (he re is an exp ressed P re side ntial intere st. I would re ga rd such calls as im prop er. I think 

th at they have a very delicate relat ionship here and it is im po rta nt 

th at these Com missions be kep t as ind ependent o f the executive on the 

regu latory fun ctions deleg ate d them by the Congress as it is h um anly 

possible to achieve.
REORGA NIZATION PLANS 1 AND 2 OF 1961 49

For th at very reason I did not view at all favorably the proposal for 

an overseer in the White House. I felt tha t the overseer function can 

be adequately maintained bv the committees of the Congress.

The Chairman. Dean Landis, you have been here for some time 

now, and the hour is getting late, but I would like to take just a few 

minutes, provided the other members of the committee have the 

time, to try to develop this and make the legislative history here 

and I will do my best to refrain from repetition.

The concern that we have, and it has always been my concern during the entire time, is the independence of these agencies. I do not 

think th at there is any great area of disagreement th at these are agencies that were established by the Congress and they are independent 

brandies of our Government, set up to act for and instead of the Congress and in some way to legislate on behalf of the Congress.

It is our feeling, and certainly mine, and I think it is the feeling 

generally of this subcommittee, tha t tha t independence shall not in 

any way be interfered with. There is grave concern on behalf of the 

committee that there might be an unwarranted interference on behalf 

of the Executive and not necessarily because this administration happens to be in office now, but with reference to any administration. 

I am very glad, as has been expressed by others here, that with all 

deference to you, tha t your recommendation of the so-called czar, 

which you said you did not intend, and you did not claim th at characterization of it, but an overseer just the same—I am very glad tha t 

tha t recommendation has not been carried out, and I think that tha t 

would probably be an unwarranted invasion of authority and influence and interference of these agencies as an independent branch 

of the Government, designed to perform a p articular purpose.

That is the reason for the questions th at have been asked you this 

afternoon, and tha t is the reason many members of the Congress have 

grave concern about these proposals. I think the objectives that are 

contained in these proposals here have a great deal of merit, and some 

of the things that are in them, and implied in them, our subcommittee 

has recommended to the Congress. I thinnk the important thing is 

to find out just what to do.

Now, in your explanation here, you have explained very carefully, 

I think, and clearly, that in the very first section, section 1, the authority that was delegated can be effectuated only by a published order 

or rule of the function of the Commission to a divisions of the Commission and so forth, and nothing can become applicable, as I see it— 

and 1 want to get that very clearly from you—as to whether or not 

tha t was intended. It says nothing here is to be delegated, except as 

the Commission as such by published order or rule that would bring 

about such delegation of authority. Is th at true or not ?

Mr. Landis. You are quite right on that, Mr. Chairman.

The Chairman. In other words, as you know from our conversations 

and some of the meetings tha t we have had, where I have expressed my 

feeling about this particu lar matter, and as you well know, and as 

members of this committee very well know, one of the things I was 

concerned with is taking away from the Commission the authority 

for the Commission to act as a commission and giving it to one man, 

the Chairman without the Commission having any authority wha tsoever.
50 REORGANIZA TION PLA NS 1 AND 2 OF 196 1

Now, as I understand from this proposal here, beginning with section No. 1, nothing can be done with reference to this reorganization 

plan without the Commission itself taking affirmative action to brin g it 

about.

Mr. Landis. That is quite correct, tha t the delegation must be 

undertaken by the Commission and the words “published order or 

rule” imply very clearly th at it shall not be an informal type of delegation, but it shall be a formal type of delegation, which the world will 

know, and th at delegation can only be done by the action of the Commission as such.

The Chairman. And the Commission then afte r that delegation of 

authority by a published order and by affirmative action of the Commission, can by Commission action rescind the delegation if the Commission so desires.

Mr. Landis. At any time it can be rescinded.

The Chairman. Now, tha t is the first part of section 1.

The second part of section 1 has to do with 7(a) of the Adm inistrative Procedure Act, which would main tain the authority therein contained with reference to hearings of matters before the Commission. 

In other words, tha t is, it may be heard by the Commission, by a Member of the Commission, or by a hearing examiner.

Mr. Landis. Tha t is right.

The Chairman. And that rule of law is maintained in this proposal ?

Air. Landis. That is right.

The Chairman. Now, the th ird provision in section 1, then, is that 

the functions of the Commission with respect to the filings of exceptions to decisions of hearing examiners and the functions of the hearing oral arguments on such exceptions before the entry of any final 

decision, order, or requirement as is set forth in subsection “b” of section 409 of the Communications Act of 1934, are hereby abolished.

Now, that is the provision of law that, as you know, I raised some 

question about.

Mr. Landis. Yes, you did.

The Chairman. In other words, on initial decisions, the law presently provides that any party may file an exception, and therefore has 

the right to oral argument before the Commission and a review by the 

Commission.

Air. Landis. That is the way the present law stands.

The Chairman. That is the present law ?

Air. Landis. Yes.

The Chairman. And by this language, th at provision of the present 

law is repealed and adjudicatory matters are decided on the same basis 

as is now provided for nonadjudicatory problems ?

Mr. Landis. Yes.

The Chairman. Making it discretionary whether or not the Commission would review it.

Air. Landis. Yes, you are quite right in that field, that the existing 

law in the case of the Communications Commission that the regulatory 

functions can be delegated and provides a discretionary right of review over such action.

The Chairman. That is right,

Air. Landis. That is right. Actually tha t rarely occurs. Well, it 

does occur in certain cases. I would say it does occur.
REORGANIZATION PLANS 1 AND 2 OF 19 61 51

The Chairman. Of course I personally think, as the staff has suggested in its memorandum, which was read to you a moment ago, that 

you are getting in for some real litigation. I think the first time you 

have a license application before the Commission and this particu lar 

problem arises, I thin k tha t you are going to see it on its way to the 

courts. Tha t is my own idea about it and I do not necessarily say it 

will happen or it will not. I have a feeling tha t tha t is what is going 

to happen.

Now, suppose it does, and tha t is the reason I raised the question— 

suppose it does, and then you have a long delay before the courts can 

decide. Would th at not in itself cause a bottleneck to arise during this 

time, and you get no effective results from it whatsoever ?

Mr. Landis. If tha t did happen, and if the court took the position 

tha t the reorganization plan was beyond the powers granted to the 

President under the Reorganization Act, you would revert to the pre sent method of doing business, following a decision of that nature. The 

Commission would have to change its rules.

The Chairman. The Commission would be in the same position 

tha t it has been in so many times, it would be sitting down with no 

action one way or the other.

Mr. L andis. Well, I don’t think so. I thin k tha t it just reverts to 

the existing scheme tha t it has now.

The Chairman. Well, I think one of the problems, regardless of 

all of the criticisms that, have been made, and I suppose that I have 

had my share of them at times—but I thin k one of the problems 

which some of these commissions have had, is they have been tied 

up in court a lot of times, and tha t has tied everything up.

Mr. Landis. Well, it would tie up that particu lar case, and of 

course it would not tie up any other cases where no judicial review 

was sought.

The Chairman. You would agree with me th at that is possible?

Mr. Landis. That is possible.

The Chairman. Now, subsection “b,” th at has to do with what we 

have just been talking about, the discretionary right of review, the 

action of any such commission, individual commissioner, hearing 

examiner, employee or employee board, upon its own initiative, No. 1, 

and No. 2, upon petition of a party, and No. 3, by an intervenor in 

such action.

In other words, this leaves the Commission with the auth ority by 

its own initiative or the Commission may on a petition by a party 

or on a petition by an intervenor to such action, within such time 

and manner as the Commission by rule may prescribe, within its 

discretion review the action of whatever officer might have been 

designated fo r that p articular function.

Then you have the proviso—and this is the first safeguard tha t 

you mentioned, I believe, a moment ago—that is, a vote by a majority 

of the Commission less one member shall be sufficient to bring this 

action before it.

In other words, it can be forced to be brought before the Commission, if the Commission in its discretionary authority said, “No, we 

are not going to do it,” then by majority of the Commission less one 

member, it must come before the Commission: is tha t right?

Mr. Landis. That is right.
52 REORGANIZATION PLANS 1 AND 2 OF 196 1

The Chairma n. Now, w hat do you mean by that? You hav e indicate d here th at it means a majo rity of the full Commission, as in 

the case of the FC C, seven members. Sup pos e there are only five 

members th at are present and pa rti cipa tin g ins tea d of the seven? 

Wo uld it stil l mean a majo rity of the seven mem bers an d req uire 

three, or wou ld it then mean a major ity of the five mem bers which 

would req uire two ?

Mr. Landis. 1 think th at you have to distinguis h two cases there. 

If there are five members pa rti cipa tin g bu t the re are two o ther members on the Commission, in my opinion this means th at you would 

have to have three members in or de r to invoke th is section.

The C hair man. I am sorry, bu t I was interru pted . Could I in terru pt you ju st a moment off the record ?

(Discussion off' the record.)

Mr. Landis. 1 was going to dis tin gu ish th at case fro m the case 

where you have five m embers on the Federal Comm unications Commission only because you have two vacancies. Now, in th at s ituation, 

a majo rity of the Comm ission is thr ee and minus one is two, and 

the refore , two members could invoke this provision.

The mere fac t that cer tain members di dn ’t pa rtic ip at e does no t reduce the ma jor ity , but if the re are no more than five mem bers on the 

Comm ission, then as I would rea d thi s section, it would mean th at 

two of them , being a ma jority less one, could invoke th at provision.

The Chairma n. Well, we hav e had th at question before, wheth er 

or not it requires in a Comm ission th at is supposed to be a ful l Commission with seven, wh eth er or no t it would req uir e fo ur members 

voting in or der f ora decision to stan d.

I t seems to me as if there are some cou rt questions on th at. I am 

not sure, but I would hope th at we would not again get into any un ­

ce rta inty with refe renc e to this and I have a fee ling th at th at is j us t 

wh at we are doing. Fro m wh at you have just said, if you have a 

seven-man Commission but the re are only five members on it and two 

vacancies, you would constru e o r at least you intend th is th en to mean 

that a ma jor ity of whatever numb er of Com missioners are act ual ly 

serving.

Mr. Landis. Yes, th at is wh at I mean or would con stru e this section to mean.

Th e ( Tiairman. Th at is wha t would be intended by it ?

Mr. L andis. Yes, sir.

Th e Chairman. The courts on so man y occasions have paid lit tle 

attention to some of this legisla tive his tory on proposa ls and construed the langua ge them selves; as w hat they u nderstoo d the languag e 

to read, and I am just wondering if we would not get int o th at same 

box on this, as to wh eth er or n ot in an im po rta nt case it would hin ge 

on thi s question.

T have some re ser vations with it myself.

Mr. I >andis. I might call your a tte nti on to the fac t, Mr. Ch airma n, 

that cou rts recently, much more so than say, 20 or 30 y ears ago, pa y 

much more attenti on to the legislative his tory of sta tutes in constru ing them tha n they d id some 20 or 30 yea rs ago.

Th e Chairman. We ll, I don’t wa nt to get into th at arg um ent, in 

view of some of t he legisla tive app ear anc es th at I h ave h ad and when 

I have been rig ht in the middle of it fo r the last 5 or 6 years.
REO RGA NIZATION PLAN S 1 AND 2 OF 1961 53

But subsection ( c)—we will go on to this—then is fu rth er reference 

to or what would happen if the exercise of the review were to be 

completed.

This means th at even though an order of the hearing examiner may 

become final, it does not become final until the r igh t of an individual 

or a p arty has been exercised if he so desires it, before the Commission 

and a final decision of the Commission on tha t which might revert 

back to the decision of the hearing examiner at the outset.

Mr. L andis. Yes. The hearing examiner’s decision would then become final for all purposes, and just to make it clear that it is final 

for purposes of judicial review, this has been inserted, this section. 

„ The Chairman. But it would not be until the righ t of some individual or some party or individual had already expired. I think that 

I understand very well the clear meaning of this provision.

Again, section 2 cannot be applicable unless the Commission, by 

, published order o r rule as provided in section 1 authorizes it.

Mr. L andis. Th at’s right.

The Chairman. That is very clear, is it not ?

Mr. L andis. It is very clear.

The Chairman. I think tha t there is a great deal of m erit in p roviding auth ority or tha t there be some a uthority in somebody, to do 

the housekeeping and to assign this work and workload.

Still, I am very conscious of the fact that it should not be done without the full commission having some voice in it. But I do thin k th at 

in these agencies we have to do something to expedite this work, and 

the only way I see how it can be done is to delegate some of this workload to various people. That would be appropriate to accomplish it.

Getting a little on the ridiculous side, 1 don’t want to send a case or 

some work to the waterboy tha t should be given to the hearing’ examiner, and I don’t think tha t that is intended by this at all. I would 

think tha t the Commission, in assuming its responsibility in its rule 

or order authorizing delegations, would clearly understand what was 

intended for the Chairman, in this case, to do in carrying out these 

responsibilities.

But what do you mean and what is intended by using the words “including Commissioners”? Are they to be treated as though they are 

ordin ary members of the staff or the personnel of the Commission ?

Mr. Landis. Well, there would be two situations in which they would

• be affected, namely, if the Commission acting pursuant to section 1, 

provides for, we will say, three panels of Commissioners, one for common carriers, and another for broadcasting and we will say a thir d 

having to do with safety or some other function.

* Now, the assignment of the personnel to these panels would be the 

responsibility of the Chairman and it may very well be that one panel 

will not be too busy whereas another panel will be very busy.

The Chairman. If the intent is to delegate it to panels, I can conceivably see certain matters going to one Commissioner who acts as a 

Commissioner, but what I want to clear up is any misgivings if there 

are any. To use a ridiculous example again, could the Chairman, 

under this authority which the Commission might give him, send a 

Commissioner down to carry water for somebody ?

Mr. Landis. I shouldn't think tha t the Commission would a uthorize the delegation of any auth ority of that nature. That would just 

be so stupid that the Commission would not act under section 1.
54 REORGANIZATION PLANS 1 AND 2 OF 19 01

The Chairman. You say these matt ers are usually acted upo n in a 

bro ad way, where a lot of thi ngs could be done. W ha t I wa nt to be 

sure of is whether it was inte nded here th at the Comm ission be assigned to functio ns that are ordina ril y ami nor mally the job o f Commissioners and personnel of the Comm ission be assig ned fo r duties 

and functions th at are normally the work of the personnel of the 

Commission.

Mr. L andis. 1 s houldn’t t hin k so. Ce rtainly, it is the intention here 

to provide the possibility th at instead of bein g forced to act eit he r as 

a whole or in panels, they could act ind ividually. If so, the schedule 

of assignm ents would be drawn up by the Ch airma n, and na turally 

any decent Chairma n would con sult his colleagues as to what their 

workload is, and it is always tru e th at some men dis patch business 

much more quickly than others, and so you can’t be too autom atic 

about a thing of t ha t natu re. You hav e to be flexible.

The Chairman. In oth er word s, is it the int ention here then, that 

the Ch airma n would not be autho rized to delegate a fellow Commissioner to hear a pa rti cu lar case in lieu of an exa min er, witho ut the 

Comm ission itse lf havin g previously app rov ed it?

Mr. Landis. Yes. Th e Commission would have had to previou sly 

app rov e it pu rsu ant to section 1, because section 2 applies only to the 

dele gations under section 1, and it doesn’t apply to any oth er delegat ions.

Th e Chairman. Tha t is wh at is intende d in your stu dy and, of 

course, you have been in the middle of this all of the time and th at is 

wh at you think that thi s means, and what it is inte nded to be?

Mr. Landis. Yes, t ha t is ri gh t.

Mr. Younger. Will the gen tlem an yiel d? I t doesn’t seem to me, 

Dean Landis, if I have under stood you correctly, t hat once the tran sfe r of functio ns to the Ch airma n is made, then the Chairma n can 

assig n a member of the Commission to he ar a case wit hout the ap ­

pro val of oth er Comm issioners. Is n’t t ha t tru e ?

Mr. Landis. If 1 correctly understand your qu estio n, once th e delegation has been aut horized by the Comm ission, the Chairma n then 

can dis tribute this work to the ind ividual Commissioners.

Mr. Younger. He doesn’t get the conc urrence of the Commission 

again on each assi gnm ent?

Mr. Landis. No, he does not.

The C hairman. Bu t when the origin al au thority is delegated, 

tho ugh, it would have to include the delega tion of a Comm issioner, 

for example, to s it as an examin er?

Mr. Landis. A Com missioner could be delega ted the work of a 

he ari ng examin er, because t hat is permissible u nder section 7( a) of the 

Ad ministrat ive Pro ced ure Act.

Th e C hair man. Tha t is true.

Mr. Landis. W hethe r the Commission would want to do th at would 

dep end upon the Commission, actu ally .

Th e Chairm an. Well, it would have to be under the published rule, 

as to whether or not th at was the policy of the Commission?

Mr. Landis. Th at is rig ht.

Mr. Rogers of Flo rid a. Would the chairma n yield?

Ju st to make that a little c learer for me, in oth er words, the Com ­

mission itse lf would say to the Chairma n, in their pub lish ed orde r
REORGANIZATION PLA NS 1 AND 2 OF 19 61 55

or rule, th at y ou will have the au thor ity to assign one Com missioner 

as a hearing officer or you will have au thority to assign two Commissioners as a panel and set up two panels or three panels, and it 

would be specific in t hat degree.

Mr. L andis. Th e Commission has to be specific in th at deg ree; 

yes.

Mr. Rogers of Fl orida. Th an k you.

Th e Chairma n. Now, briefly, with reference to section 3 and th at 

really carries out a reco mm end atio n which th is c omm ittee has made, 

to abolish the review staff, may I inq uire if you intend by this th at 

the staff tod ay know n as the review staff is to be utilized by the Commission in connectio n with the work of the Commission in its r esp onsibilit y u nd er these new procedure s.

Mr. L andis. Tha t was my intention, th at you would leave these 

men doing exa ctly wh at they are doing now, but provide th at they 

wo uld n't be ha mstr un g the way section 5(2 ) hams trings them now.

In other words, these people today can ’t come in and make a 

recommen dati on to the Comm ission as to how to dispose of a matter 

th at the y have studie d. They should get ideas as to wh at should be 

done w ith it. Th ey can’t do it.

All this does is relieve th at ha mstr inging o f the review staff. The 

Comm ission, I don’t believe, can get along witho ut assistance of this 

type. , . , • . .

Th e C hairman. Wo uld this con tem plate, then, tha t a ( omm issio ner 

be assigned to be respon sible fo r opinions?

Mr. L andis. No, this doesn't req uire th at . It makes it easier to 

introd uce a practic e of th at na ture if the Commission wants to introd uce th at practice.

Th e C hairman. It would not prohibi t it, wo uld it ?

Mr. L andis. No, it would fac ilitat e it, in fac t.

The Chairman. I th in k some hav e rais ed that question and I 

wanted to ge t a cle ar ana lysis of it and what woidd be intende d here. 

I t seems to me, and I know it is ou r position th at it would exp edite 

these matters and I think would have lietter performanc e by Commissioners being assigned, to be responsible fo r opinions. There has 

been some discussion on it, and I hope th at th at would ult im ate ly lie 

brou gh t about, and some of the commissions have alread y ado pted 

that pr ocedure, which I th ink is a very good one.

Mr. L andis. Both of these Commissions have ado pted the principle of an individ ual Com missioner bein g responsible for seeing that 

the rationale of th e decision of the Comm ission is fully set fort h. D ifferent comm issions act different ways in deali ng with this kind of a 

responsibility.

In the Securit ies and Ex cha nge Commission you have what is know n 

as an Opinion W rit ing Section, th at h angs tog eth er pr etty much as a 

unit. In oth er comm issions you will find th at the work is done by 

ass istant s to pa rti cu la r comm issioners and th ey a re not a unit, b ut it is 

done out of the comm issio ner's office.

Th is is flexible and allows them to do it in whate ver way the y think 

is best.

Th e Chair man. Now, finally, as I said at th e outset, th ere is a g reat 

deal of fear on the pa rt of some th at the executive would encroac h 

upo n the prero gatives and the independence of the commissions. Do
56 REORGANIZA TION PLANS 1 AND 2 OF 19 61

you see an ything at all where under this proposal there would be any 

tran sfer of authority or any encroachment whatsoever by the executive 

branch of the Government on the independence of the Commission, in 

their work and function?

Mr. L andis. I see nothing in these reorganization plans t hat would 

mean th at the executive is encroaching upon the independence of the 

Commission.

The Chairman. Would this give the executive any authority whatsoever over the agencies or the independence of the agencies which it 

does not have today ?

Mr. Landis. I would say definitely no. It doesn’t give the executive 

any such authority.

The Chairman. And certainly tha t was intended when you presented it?

Mr. Landis. Tha t was clear, it was intended, and I think the intention is carried out in the words of the plan.

The Chairman. Do you have any fu rther questions ?

Dean Landis, let me, on behalf of the committee, thank you for 

your appearance here this afternoon, and your patience in remaining 

with us durin g this time. We would extend to you an invitation to 

come back if you care to on Tuesday morning to observe the further 

proceedings.

Mr. Landis. I th ink that I would like to very much.

The Chairman. We will be very glad to have you come back if you 

desire. Than k you very much.

The committee will adjourn until Tuesday morning at 10 o’clock.

(Whereupon, at 5 :55 p.m., the hearing in the above entitled matter 

was recessed, to be reconvened at 10 a.m. on Tuesday, May 16, 1961.)
reference V

library

. department '

■

x j ^TAH,

REORGANIZATION PLANS 1 AND 2 OF 1961

TUESD A Y , M AY 16, 1961

House of Representatives,

Special Subcommittee on Regulatory

Agencies of tiie Committee on

I nterstate and F oreign Commerce,

IV ashing ton, D.G.

The subcommittee met, pursuant to recess, at 10 a.m., in room 1334, 

New House Office Building, Hon. Oren Ha rris (chairman of the full 

committee) presiding.

Pres ent: Oren Ha rris (chairman), Mr. Rogers of Texas, Mr. 

Flynt, Mr. Moss, Mr. Rogers of Florida, Mr. Bennett, Mr. Springer, 

Mr. Younger, Mr. Thompson.

Also present: Charles P. Howze, J r., chief counsel of the subcommittee: George W. Perry, associate counsel of the subcommittee; • 

Herman C. Beasley, subcommittee clerk; Rex Sparger, staff assistant of the subcommittee; Ku rt Borchardt, legal counsel, House 

Committee on Interstate and Foreign Commerce; Allan H. Perley, 

Legislative Counsel of the House of Representatives; Elmer W. Henderson, counsel to the Subcommittee on Executive and Legislative 

Reorganization.

The Chairman. The committee will come to order.

Today the committee will resume hearings in connection with the 

Reorganization Plans 1 and 2.

This morning we have the Federal Communications Commission 

back with us in connection with Reorganization Plans Nos. 1 and 2.

Mr. Minow, you may take the chair, please, sir.

I believe this is th e first time you have been before the committee 

officially.

STA TEM ENT OF HON. NEWT ON N. MIN OW, CHAIR MA N, FEDE RA L 

COMM UNICATIONS COMMISSION

Mr. Minow. I was here, Mr. Chairman, on the educational television 

bill.

The Chairman. I want to say to you and to all members of the 

Commission, th at we are g lad to have you back here this morning so 

that we may have the benefit of your thinking and tha t of the other 

members regarding this important proposed reorganization.

At the outset, if you care to, you may advise the committee if your 

testimony is your own or for the Commission or certain parts of the 

Commission, or just what the situation is.

Mr. Minow. Thank you, Mr. Chairman. I want to than k you and 

the committee for the oppo rtunity of being here today.

57
58 REORGANIZATION PLAN S 1 AND 2 OF 19 61

I spe ak this mo rning perso nally, no t fo r the Comm ission. Wh en 

the chair ma n told me abo ut the he aring I asked all my colleagues to 

attend , and they are all here. An d I would like to make clear at the 

outset tha t 1 do not speak officially fo r th e Com mission.

Th e Chairma n. I suppose we will no t have any inform ation or 

discussion from the Commission as su ch ; each one will have his own 

indiv idual views, it th at it?

Mr. Minow. Tha t would be my jud gm ent, Mr. Ch air ma n. We 

wou ld agre e on some thing s and disagr ee on oth ers, and 1 th in k it 

would be best if we in div idu ally state d o ur position s.

Th e C hairman. Very well. You may proceed.

Mr. Minow. I have a prep ared mem orandu m. W ha t I wou ld like 

to do is read th at into the reco rd if th at is agreeable.

Th e ( Ihairm in . You may do so if you like.

Air. Mi now. Th is is a mem orandu m in su pp ort of Re org aniza tion 

Pla n No. 2 of 1961.

Section 1: Th is section gives the agency much needed flex ibility 

in hand lin g its caseload. At the present time, the Commission mu st 

he ar o ral argum ent and pass on the exceptions in every ad judicatory 

case (see sec. 5 (d )( 1 ), 409 (b) of the Com municatio ns Ac t of 1934, 

as amended, 47 U.S.C. 5( d) ( 1) , 40 9( (b )). An d, even in the n on ad ­

jud ica tor y case where it may delega te its fun ctions, the full Com mission must then perm it and pass upo n an appli catio n fo r review’ (see 

sec. 5 (d ) (2 )) . In view of these res trictions, it is difficult, if no t im ­

possible, to alle viate the ad minist rativ e lag or backlog, con cerning 

which the Congress is so familiar. (See, e.g., II . Re pt. No. 2238, 

86th Cong., 2d sess., p. 43; S. Re pt. No. 168, 87th Cong ., 1st sess., 

pp . 1-2.) Eq ually im po rta nt, the Com mission ers’ time is so much 

tak en w ith decidin g routine cases tha t the c ons ide ration o f m ajo r m atter s of policy and plan ning necessarily suffers (S. R ept. No. 168, 87th 

Cong., 1st sess., pp. 7 -9).

Reorg anization Plan No. 2 wou ld end th is un fo rtu na te situation. 

I t would give the agency the discre tion to hand le each m atter as it 

deserved. Fo r exam ple, when a petition fo r dis cre tio nary review’ of 

an exa miner ’s initial decision in an adjudicatory case is filed, there 

wou ld be the follow ing pos sib ilitie s:

(i) Wh ere the Commission (or at least five Comm issioners ), af te r 

exa mination o f the petition , determ ine s t hat t he case involves n o new 

im po rta nt policy or lega l consider ation n or an y significant fac tua l erro r or depa rtu re from establ ished policy or law’, it will sim ply deny 

the p etition, thu s ma kin g th e exam ine r’s decision final and appea lab le 

to the courts. Th is, I sub mit, is wholly sensible. Fo r, it is a waste 

of time and energies of the p artie s, the agency, a nd , in effect, the p ub ­

lic to insist th at the ad minist rativ e process con tinu e befo re the full 

Commission for anoth er y ear or so, only to end with the same result 

and f or the same reasons and findings, (see S. R ept. 168, 87th Cong., 

1st sess., pp. 7-9 .)

(ii ) If th e Commission concludes that the case, although inv olving 

rou tine principles, does raise a serio us question of fac tua l erro r or 

some sig nificant find ings o r a de pa rtu re from establ ishd law or policy, 

review’ is of course call ed for. Where the facility or license at issue 

is a relativel y un im po rta nt one (as fo r example might be the case in 

many of the tho usands of appli catio ns filed each year in the safety
REORGANIZATION PLANS 1 AND 2 OF 19 61 59

and special services field), the Commission could delegate such review to a board composed of specialized employees having no other 

duties. Any alleged error of this board would then be subject to discretionary review by the Commission. But if, as I would hope, the 

board had corrected the factual errors, if any, and reached a proper 

decision, the petition for discretionary review would be denied (by 

the vote of a majority plus one) and again the case would be ripe for 

review by the courts.

(iii) Where the significant factual erro r or departure from established policy or law occurs in a case involving a valuable facility, 

the Commission might assign the case to a panel of three Commissioners. I would think that there would be included in this group a 

number of the standard broadcast and FM cases heard either on issues of comparative qualifications, allocation under section 307(b), 

interference, rules compliance or the like. Many of the common carrier adjudicatory proceedings (see app. A for an illustrative list of 

such proceedings) could be heard by panels as could operator license 

cases of more than routine nature. Here again there would be discretionary review of the panel’s decision by the full Commission, 

upon the vote of any three Commissioners.

(iv) Finally, where the case raises important matters of policy 

or law, the full Commission would of course entertain the appeal. 

Further, I would expect tha t large, multiparty, comparative television proceedings involving the assignment of television channels to 

major cities or proceedings to revoke or deny renewal of a broadcast 

station license would in most instances be considered and decided by 

the full Commission.

Where the Commission grants the petition for discretionary review, 

exceptions will be permitted, either to the employee board, the division of Commissioners, or the full Commission. (See sec. 8(b) of the 

Administrative Procedure Act, 5 U.S.C. 1007 (b )). Oral argument 

would be allowed in every instance where it would serve a useful purpose. To hold such argument where it would serve no useful purpose—where, for example, the issues are few and clearly grasped from 

the pleadings—would be unjustified. The test of any procedure in 

any given case must be whether it serves a public purpose : If it does, 

it will be utilized, i f it does not, private p artie s or th eir counsel have 

no legitimate complaint in its rejection. Of course, in the cases heard 

by the Commission because of their importa nt policy connotations, 

oral argument would continue to be the rule.

Similarly, in the nonadjudicatorv cases, the Commission could now 

deny, without assigning reasons, the petition for discretionary review, and thus make the delegated decisions its final action. I have 

set out in appendix B a few examples in just one field where such 

power would aid the Commission in the prompt dispatch of its business.

The foregoing observations as to the possible application of the 

plan are necessarily tentative at this time. Further, I have not described all the procedural possibilities available under the plan, and 

could not do so. For, obviously, such procedures and applications will 

be gradually and carefully developed bv the full Commission over the 

next few yeais. What the plan has done is to remove the present 

strait jacket in order to enable the Commission to concentrate on im-
60 REORGANIZATION PLANS 1 AND 2 OF 19 61

portant matters and to cut clown the administrative lag. If we fail to 

make full use of this flexibility, the fau lt will be ours. But if flexibility is withheld, I do not believe Congress can fairly continue much 

of its criticism of the administrative process.

It may be urged that the Commission will not review decisions containin g factual errors or important policy questions. I do not think 

we will let a decision containing a significant factual erro r slip by, 

provided the petition for discretionary review calls it to our attention. 

But if we do, the courts will catch the error and remand the case to the 

Commission. As to the important policy question, I assure you that 

neither I nor my colleagues serve the Commission to “duck” important 

issues. To let an examiner or an employee board be the final word 

on the development of important policy would be incongrous and incredible. But it is just as incongrous (although unfortunately not incredible) tha t this Commission, which is faced with urgent problems 

in space satellite communications, TV allocations, and a host of other 

matters, must set aside almost a full hour to hear, and necessarily 

additional time to decide, whether the ship station license for a coastal 

fishing boat should be revoked or suspended for 3 or 6 months.

I have set out in appendix C a list of the cases heard by the Commission in the last quarter of I960. To give but one example of the 

effect, of the plan, on the first day of argument in that quarte r (October 

13, I960), the Commission heard argument on the following four cases, 

tot ali ng 260 minutes,or roughly 4y2 ho urs :

1. Springfield, Ill., deintermixture proceeding—In re amendment 

of section 3.606, table of assignments, television broadcast stations 

(Springfield, Ill.-St. Louis, Mo.), and proceedings pursuant to remand 

in Sangamon Valley Television Corp. v. United States and FCC,

et al. One hundred and twenty minutes consumed in oral argument.

2. Patterson, La., ship radio revocation proceeding—In re Pa tterson Shrimp Co., Inc., in a show cause proceeding why there should 

not be revoked the license for radio station WC-3826 aboard the vessel 

Howard Rochel at Patterson, La. Forty minutes consumed in oral 

argument.

3. Proceeding in re application of James J. Williams for a construction permit for a new standard broadcast station at Williamsburg, 

Va. Forty minutes consumed in oral argument.

4. Proceeding in re applications of Herbert T. Graham and Triad 

Television Corp, for construction permits for a new standard broadcast station at Lansing, Mich. Sixty minutes consumed in oral 

argument.

The Commission then took additional time to discuss, decide, and 

prepare the decisions in these cases.

Under the plan—and I emphasize tha t I speak here personally 

only, as to my judgment about it—under the plan the Commission 

would undoubtedly have heard the argument in the first case, the 

Springfield, Ill., deintermixture proceeding, since the proceeding involved important and unusual policy and factual matters. But in the 

next case, the question whether the ship station’s license of a shrimp 

boat should be revoked did not involve any novel question whatever: 

Certainly an employee board could have disposed of the factual issues 

raised. And, just as clearly, a division of the Commission (or perhaps 

an employee board) could have dealt with the two following cases
REORGA NIZATION PLAN S 1 AND 2 OF 1961 61

involving routine issues as to application for standard broadcast 

facilities. If either the panels or the board erred, such error could be 

corrected by the Commission on petition for discretionary review. I 

thin k this example day, which would be multiplied many times in view 

of the roughly 50 cases in which oral argument was heard last year, 

illustrates the benefits the Commission would derive from its newfound flexibility under the plan.

If I may digress for a moment, tomorrow, for example, we will sit 

as a Commission and hear oral argument in a number of cases. Today 

is the last day on which comments were due from the industry on the 

problem of space communication satellites. This is a matter of most 

urgent concern not only to the Commission but to the country. We 

should, in my judgment, be free to direct our full attention and give 

this the urgent prio rity and consideration it demands before the 

Commission.

I cite this as one example of the inflexibility of our present procedures.

Section 2: This section provides tha t the Chairman shall assign 

the personnel, including Commissioners—

to perforin such function as may have been delegated by the Commission to 

Commission personnel, including Commissioners, pu rsuant to section 1 * * *. 

Thi s provision is thu s a housekeeping one: It is necessary th at someone decide the makeup of the panels and boards and be responsible 

for the equitable and efficient allocation of such assignments. As the 

President pointed out in special message of April 13,1961, tha t “someone” should be the Chairman—the agency’s chief managerial officer. 

And, indeed, the act presently designates the Chairman as—

the Chief executive officer * * * [with the] duty * * * generally to coordinate 

and organize the work of the Commission in such manner as to promote prompt 

and efficient disposition of all m atters w ithin the jurisdiction of the Commission 

(sec. 5( a )).

If I may digress here a moment, I feel a little on the spot here 

today because so much of this deals with the role of the Chairman 

in a regulator agency. And I have tried, and I know my colleagues 

have tried, to treat it on an impersonal basis and be less concerned 

with me as a Chairman, but whoever might be the Chairm an from 

time to time. And it is in tha t spirit th at I would like to talk about 

this , although I realize that it is hard to separate the two.

Some of my colleagues have informed me of th eir opposition to this 

provision. They have stated that while they know tha t I would not 

abuse the power so bestowed (and I in turn have assured them tha t 

any assignment made would be on a rotational basis as far as pra cticable) , in principle the provision shifts the agency from an independdent bipartisan commission to an administrator within the executive 

bra nch; th at it puts the Commissioners’ time and energies completely 

at the disposal of the Chairman, and tha t it is open to abuse in tha t 

it permits the deliberate selection by a Chairman of Commissioners 

with predisposed ideas on certain subjects to sit on the panels. I 

respect the position of my colleagues, but I believe tha t their reservations are without foundation.

First, under section 1 it is the Commission, not the Chairman, 

which has the complete control over whether a matter should be

73 53 1— 61 ------5
62 REORGANIZA TION PLA NS 1 AND 2 OF 196 1

delegated. If, for example, my six colleagues thought the present 

system was ideal, they could vote to retain that system. 1 think that 

would be a mistake but it certainly shows th at it is the Commission 

which is in control of this entire delegation matter. Suppose, fur ther , 

tha t a Chairman did abuse his assignment powers, by either overburdening Commissioners or making assignment with a view to obtaining a certain outcome. The short answer is the Commission, which 

can vote to reconsider any action it takes, would simply reverse its 

delegation and take up the matters itself. Thus, as a practical matter, the Chairman must act fairly or the Commission will in effect 

withdraw his power to act in this area. In view of these considerations, the agency cannot be converted by this minor housekeeping 

provision.

Second, the President was at pains to preserve the bipartisan 

nature of the agency. The plan specifically provides:

in or der to m ain ta in th e fu ndam en ta l bip art is an co ncept ex plici t in th e ba sic 

st atu te cr eati ng th e Co mm ission , fo r m an dato ry review of any su ch decis ion , 

re port or ce rtific at io n upon th e vo te of a m ajo ri ty of th e C om m ission er s less one 

me mb er.

For this reason also, it would be senseless for the Chairman to abuse 

his assignment powers; by a vote of three Commissioners, his 

colleagues could and would bring the case to the full Commission.

In short, this provision does no more than vest in the chief executive 

officer the responsibility for work assignments requiring “continuous 

annd flexible handling’' (Presidential transmitted message). By its 

own order, the SEC, on January 16, 1961, announced that in the 

preparation of formal decisions, “cases will be assigned by the Chairman to individual members of the Commission;” and several of the 

Federal courts of appeal have vested the power in the chief judge to 

assign the judges comprising the panels. Many similar examples 

could be given. The fact that such power is vested by order of the 

agency or court rather than by an execution plan is no distinction. 

For, as shown, the Commission has ample authority to deal immediately and effectively with any possible abuses.

Section 3: This provision abolishes the review staff, together with 

the functions established by section 5(c) of the Communication Act. 

Section 5(c) provides that the Commission must establish a “review 

staff” to aid it in the preparation of opinions in adjudicatory cases 

and that that staff may make no recommendations. Here again the 

agency lacks needed flexibility. Congressional recommendations (see, 

e.g., II. Kept. 2238, 86th Cong., 2d sess., pp. 19, 24-25; H. Kept. 2711, 

85th Cong., 2d sess., p. 11), the President’s message of April 13, 1961, 

and the administrative trend favor the practice of making individual 

agency members responsible for the preparation of the agency decisions. Four important agencies, three since the beginning of this 

year, have adopted this practice. But the Commission is handicapped 

in revising its decisional processes because of the rig id requirements of 

section 5(c). With the abolition of the review staff required by 

5(c ), the Commission will be able to devise the procedure which in 

its view will best deal with such factors as the need for prompt dispatch of business, the desirability of personal responsibility for the 

preparation of a decission, and the relative handicap of some Commissioners having no legal or similar background usually thought 

necessary for decisionwriting.
REORGA NIZATION PLA NS 1 AND 2 OF 1961 63

In this connection what I would personally have in mind would be 

something along the lines of this own committee’s suggestion last year 

having to do with a roving technical staff. I would not want to take 

the present review staff and split it up into the offices of each member, 

but rather to keep it without its present inhibition under 5(c) about 

helping us, b ut to keep it so tha t it would be available to whatever 

Commissioner was assigned to the job of being responsible for the 

opinion.

Furthermore, the Commission will no longer have to pursue the 

cumbersome, wasteful two-step process in disposing of interlocutory 

matters. Because the review staff is prohibited from making any recommendations, it must first receive instructions from the Commission 

on all interlocutory matters, no matter how simple or routine, and then 

return again with a dr aft opinion and order for the Commission’s 

approval. This is an obvious waste of the Commission’s and the 

staff’s tim e: Many, indeed most, of these matters could be disposed of 

at one meeting by perm ittin g the staff to attach a draft-recommended 

order. The new discretion given by the reorganization plan 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.

Mr. Chairman, I have attached a number of appendixes and, in 

order to save time, unless the committee would want me to, I would 

just as soon insert those in the record at this point.

The Chairman. They may be included in the record.

(The appendixes follow:)

App en di x A

List of common c arrie r adjud ica tory proceedings hea rd by full Commission in 

recent yea rs which m ight well have been considered by a panel of Commissioners 

or perhaps employee review bo ar d:

Docket No. 11833. Application of William J. Therkildsen. New appli catio n; compara tive hearing.

Docket No. 11184. Applicatio n of Radio Ord er Service, Inc. Request for extension of construction permit on failure to tim ely con struct station.

Docket No. 11695. Application of Southwestern Bell Telephone Co. Section 

221 (a) acqu isition case.

Docket No. 11393. Applicatio n of Black hills Video Co. New ap plication; comparative hearing.

Docket No. 11500. Applicatio n of Bell Telephone Co. of Pennsylvania. Pro ­

tes t hearing.

Docket Nos. 11883 and 11884. Application of Collier Elec tric Co., et al. New 

application; comparative hearing.

Docket Nos. 12155 to 12159, inclusive. Applications of Benjamin H. Warner, 

Jr., e t al. New ap pli catio ns; comparativ e hearing.

Docket No. 11596. Application of Loyd Fram e. Protest hearing.

Docket No. 12191. Application of Radio Dispatch Service. License renew al 

hearing.

Docket No. 11878. Application of J. B. Wathen. Pro test hearings.

Docket Nos. 11268 through 11270, inclusive, and 11375 thro ugh 11388, inclu ­

sive. Applications of Wisconsin Telephone Co., et al. Pro test hearing.

Docket Nos. 12682 and 12683. Applications of Texas Two-Way Communications. Prote st hearing.

Docket No. 13201. Applications of Ruth and Seymour Chervinski, et al. New 

ap plica tio ns; comparative hearing.

Docket No. 11932. Application of New Jersey Exchanges, Inc. Prote st hearing.

Docket Nos. 12627, 12628, 12631, and 12632. Applications of Robert C. Crabb, 

et al. New applications; com para tive hearing.

Docket No. 13174. Application of Thom as R. Poor. Prote st hearing.
64 REORGANIZATION PLANS 1 AND 2 OF 1961

Appen dix B

Illu strative examples of forfeit ure cases in the safety and special radio services field, which were required to be reviewed by the Commission en banc 

pursuant to section 5(d ) (2) of the Communications A ct:

1. Vessel Esso Raleigh and master thereof incurred forfeitures of $500 and 

$100, respectively, under section 507 of the Communications Act. After applications for relief, Safety and Special Radio Services Bureau mitigated fines to $50 

am’ $10, respectively. There was a requ est for review by Commission under 

sec.ion 5(d )( 2), and the Commission affirmed the staff action.

2. Vessel Niagra and master thereof incurre d forfeitures of $1,500 and $100 

respectively, under section 507 of the act. After applications for relief, Bureau 

mitigated fines to $100 and $10, respectively. Upon request for review by Commission under section 5 (d ), Commission affirmed staff’s action.

3. Vessel Zicgicst incurred forfeitures of $500 under title II I, pa rt II, of the 

act. Afte r application for relief, Bureau mitigated to $100. There followed a 

request for review by Commission under section 5(d) of the act, and the 

Commission affirmance of staff action.

4. Vessel Jan et Quinn and master thereof, incurred forfeitures of $1,000 and 

$200, respectively, under title III, pa rt II, of act. Afte r applications for relief, 

Bureau mitigated forfeitures to $150 and $20, respectively. Upon request for 

review by Commission under section 5(d ), Commission affirmed staff action.

5. Vessel Cavalier II and master thereof incurred forfeitures of $500 and 

$100, respectively, under title III, pa rt II, of the act. After application for relief, Bureau mitig ated to $100 and $50, respectively. Commission affirmed 

staff action upon request for review by Commission under section 5( d) .

Appe ndix C

Cases in which Commission heard oral argument in the last quart er of 

1960:

October 13,1960, docket Nos. 17747 and 12936

Springfield, Ill., deintermixture proceeding: In re amendment of section 

3,606, Table of Assignments, Television Broadcast Stations (Springfield, 111.- 

St. Louis, Mo.), and proceedings pursu ant to remand in Sangamon Valley Television Corp. v. United States and FCC, et al.; 120 minutes consumed in oral 

argument.

October 13,1960, docket No. 13150

Patterson, La., ship radio revocation proc eeding: In re Patterson Shrimp Co., 

Inc., in a show cause proceeding why there should not be revoked the license 

for radio station WC-3826 aboard the vessel Howard Rochel a t Patte rson,, L a. ; 

40 minutes consumed in oral argument.

October 13,1960, docket No. 13262

Proceeding in re applications of James J. Williams for construction permits 

for a new standa rd broadcast station at Williamsburg, Va.; 40 minutes consumed in oral argument.

October 13,1960, docket Nos. 12826 and 1291,2

Proceeding in re applications of Herbert T. Graham and Triad Television 

Corp, for construction permits for a new standard broadcast station at Lansing. 

Mich.; 60 minutes consumed in oral argument.

October 74 ,1960, docket No. 13331

In re application of Edward E. U rner and Bryan J. Coleman, doing business as 

Cal-Coast Broadcasters, for a construction jiermit for a new standa rd broadcasc 

station at Santa Maria, Calif. ; 60 minutes consumed in oral argument. 

November 4, 1960, docket Nos. 12229 and 12230

Proceeding in re applications of Walter G. Allen and Marshall County Broadcasting Co. for construction fl>ermits for new standard broadcast stat ion s at 

Huntsville, Ala., and Arab, Ala., respectively; 60 minutes consumed in oral 

argument.
REORGANIZATION PLANS 1 AND 2 OF 19 61 65

November 1960, docket Nos. 12315 and 12316

Sheffield, Ala., sta ndard broadc ast proc eeding: In re applications of Iralee 

W. Betius, tradin g as Sheffield Bro adc asting Co. and J. B. Fait, Jr., for a new 

sta nd ard broadc ast station at Sheffield, A la.; 60 minutes consumed in ora l arg ument.

Novem ber 4, I960, docket No. 12318

San Bernar din a, Calif.. FM proc eeding: In re ap plication of R ichard C. Simonton, doing business as Telem usic Co., for a construction permit for a clas s B 

FM station at San Bernardino, Cal if.; 60 min utes consumed in oral argu ment. 

December 15,1960, docket No. 13300

Proceeding in re application of Coast Ventura Co. for modification of c onstruction permit of station KVEN-FM ope rating on channel 264 (100.7 megacycles) at 

Ventura, Calif. ; 60 minutes consumed in oral argument.

December 15,1960, docket No. 13214

Grand Rapids, Mich., TV p roce edin g: In re application of Wood B roadcasting 

Inc., to change the tra ns mitter site of WOOD-TV, Grand Rapids, Mich; 60 

minutes consumed in o ral argum ent.

December 15,1960, docket Nos. 12657 and 12658

Portland, Oreg., TV pro cee din g: In re applica tion s of F ish er Bro adcasting Co., 

and Tribune Publishing Co. for constru ctio n permits for new television broadcast 

stations at P ortland , Or eg.; 60 minutes consumed in o ral argument.

December 15, 1960, docket Nos. 12188,12792, and 12197

Golden Valley, Minn., AM proc eeding: In re applications of Charles J. Lanpliier; Joe Gratz, tradin g as Minnesota Radio Co.; and Eid er C. Strang land for 

construction permits for new sta ndard bro adc ast sta tio ns in Golden Valley, 

Minn., Hopkins-Edina, Minn., and Sheldon, Io w a; 80 minutes consumed in oral 

argument.

December 16, 1960, docket Nos. 12885, 12886, and 12881

Proceeding in re applications of Jam es B. Tharp e and Joseph L. Rosenmiller, 

Jr., doing business as Madison County Br oadcaster s; Cha rles II. Norman, John 

Karo ly, and George J. Moran, doing business as Tri-Cities B roadca sting C o.; and 

Ea st Side Broa dcasting Co., for construction per mits for a new sta ndard Broadcas t station at Gra nite City, Ill .; 80 minutes consumed in oral argu ment. 

December 16,1960, docket No. 13000

Savannah , Ga., AM proceeding: In r e a pplication of WJIV, Inc., for a construction p erm it to incre ase power of st an da rd b roadca stin g statio n WJIV, Savannah, 

G a. ; 40 minute s consumed in o ral argum ent.

The Chairman. Does that conclude your statement ?

Mr. Minow. Yes, Mr. Chairman.

The Chairman. Mr. Chairman, I would like to say at the outset 

tha t I thin k that the objectives sought in connection with these proposals have a lot of merit. I thin k that the committee, from its experience, its studies and its investigation of problems over the past 

several years, has concluded, and has recommended on numerous occasions, tha t the Commissions have necessary authority, in order to 

do their work and expedite it, to avoid the long delays involved in the 

so-called lag problem, which seem to be common among the Commissions.

I do have some difficulty, after carefully studying the Reorganization Plan No. 2, affecting the Federal Communications Commission, 

in resolving some of the problems. I might say tha t I do not entertain this same difficulty in connection with some of the other plans 

like the Securities and Exchange Commission which we have before 

us for consideration, because they do not involve some of the amendments tha t the one affecting your agency involves.
66 REORGANIZA TION PLANS 1 AND 2 OF 196 1

I think perhaps that most everyone will applaud true efforts to 

take appropriate shortcuts and expedite the business of the Commission in order tha t the public, which is being served, can obtain 

the service that it is entitled to. And for t hat reason the objectives 

sought here seem to be rather laudable.

The one fundamental thing that has bothered me, and has certainly 

been close to my heart during the entire consideration of these matters, is that the Commission, as such, have control of its operation, 

and we do not have a one-man Commission. That, it seems to me, is 

pretty well reserved in section 1 of the act, as I viewed this thing and 

analyzed it. There is nothing that can result so far as this proposal 

is concerned except on the administrative side procedurewise, until 

and unless the Commission so decides by a published order or rule. 

I want to say that I agree with that provision.

Now, with reference to the other items in connection with the reorganization plan, we have recommended some of them ourselves, 

particularly with reference to the review staff and the responsibility 

as to opinion writing.

But I must say that I would prefer, when basic amendments are 

considered, that they be considered and handled in the regu lar legislative way. I think it would be a lot better, and there would be a 

greater understanding about it.

But there are a number of things tha t bother me about this plan. 

If the plan goes into effect, uncertainty and confusion may result as 

to whether, and the extent to which, certain other provisions of section 409 (b) and (c) of the Communications Act will continue to be 

in effect.

Have you given a great deal of thought to that ?

Mr. Minow. I have, Mr. Chairman.

I would like to state in response first, this plan which I supported 

as an individual, as a person, is not the work of the FCC, this is the 

President’s reorganization plan.

The Chairman. I understand that.

Mr. Minow. And I believe tha t it was submitted to the Attorney 

General, and that it received a clearance as to its legality and its effect upon other statutes. And based upon that, and also based upon 

my desire to expedite consideration of our cases in a fair way and to 

cut through the regulatory lag, this is the basis of my support for it.

I recognize t hat there are some legal questions th at were discussed 

here at our session on Thursday. But I believe tha t it is legal and 

proper.

The Chairman. Well, I think it is legal. I don’t know that. I could 

quarrel with reference to its being proper or not. But the question 

that I raised is to the effect it would have on the other provisions 

of the act itself. Now, the way I see it, you just don’t know the 

effect it would have on other basic provisions of the act. As an example, subsection (a) of section 409 provides that, in cases of “adjudication,” hearings shall be conducted by the Commission or by 

“one or more examiners provided for in section 11 of the Administrative Procedure Act.” This means, of course, that at the present time 

hearings in cases of “adjudication” may not be conducted otherwise.

Now, subject to section 7(a ) of the Administrative Procedure Act, 

section 1 of plan No. 2 authorizes the Commission to delegate any
REORGANIZATION PLANS 1 AND 2 OF 19 61 67

of its functions to a division of the Commission, an individual Commissioner, a hearing examiner, an employee board, or an individual 

employee.

You understand that to be true, don’t you ?

Mr. Minow. Yes, sir.

The Chairman. However, because of the limitations prescribed in 

section 7(c) of the Administrative Procedure Act, the Commission 

would be authorized under the p lan to delegate the function of holding hearings in cases of “adjudication” only to a division of the Commission, an individual Commissioner, or a hearing examiner or 

examiners.

Now, then, the question t hat arises to me is whether or not section 

1 of the plan would completely swallow up and supersede 409(a) ?

Mr. Minow. I think not, Mr. Chairman. My interpretation of it 

is tha t section 1 is really addressed to the problem we have under 

409(b) where we are now required by law to hear argument, and an 

acceptance from all cases coming from the examiner. I don’t think 

it affects 409(a).

The Chairman. All right. If tha t be true, then, the plan would 

in effect repeal subsection 409(b) which gives any party the right to 

file exceptions with, and present oral arguments to the Commission. 

However, subsection (b) also contains the following provisions:

(b ) The officers co nd uc ting a hea ri ng to which su bs ec tio n (a ) ap pl ie s sh al l 

pre pare an d file an in it ia l de cis ion, ex ce pt w her e th e heari ng officer bec om es 

unav ai la bl e to th e Co mmiss ion or w he re th e Co mmiss ion fin ds up on th e re co rd 

th a t du e an d tim el y ex ec ut io n of its fu nct io ns im per at iv el y an d un av oi da bl y 

re quir e th a t th e re co rd be ce rtified to th e Co mmiss ion fo r in it ia l or fin al de ­

cis ion. * * * all de cision s, in cl ud in g th e in it ia l de cis ion, sh al l become a p a rt of 

th e re co rd an d sh al l in cl ud e a st ate m ent of (1 ) fin ding s an d co nc lusio ns, as we ll 

as th e ba si s th er ef ore , up on al l m ate ri al is su es of fa ct, law, or di sc re tion , pre ­

se nt ed on th e re cord ; and (2 ) th e ap p ro p ri ate de cision , ord er or re qu irem en t.

Would these provisions of subsection (b) be in force after the plan 

takes effect?

Mr. Minow. I think so, Mr. Chairman. I think they will be totally 

unaffected by the plan.

The Chairman. Now, this question seems to me to depend on 

whether subsection (a) still has any force and effect, because subsection (b) by its own term s seems to apply only to hearings “to which 

subsection (a) applies.” Now, if these provisions were considered to 

still be in force, would they apply in the case of a hearing held by a 

division of the Commission or individual Commissioner as well as to 

a hearing held by an examiner?

Mr. Minow4

. Yes, they would, Mr. Chairman, the same provisions 

would carry over whether it was heard by an individual Commissioner 

or a panel or an employee, or whoever it was, the same requirements 

tha t you have read would still apply.

The Chairman. Then there are other im portant questions that arise 

in connection with para graphs (1) and (2) of subsection (c), which 

was added to the Communications Act in 1952, and which contains 

special requirements designed to insure, in cases of “adjudication,” 

tha t the officers performing the decisionmaking function shall render 

their decisions on the basis of a record made in a public hearing.

Now, that paragraph, without reading it, refers to examiners all the 

way through, and it was designed for a particu lar purpose in the
68 REO RGA NIZA TION PLA NS 1 AND 2 OF 196 1

1952 act, notwithstanding the provisions of the Administrative Procedure Act, which were then in effect.

Now, if you recall and read the entire parag raphs (c) (1) and (2) , 

they refer to examiners and very clearly set out procedures.

Now, these paragraphs of present law were, of course, based on 

the policy that hearings in cases of adjudication should be conducted 

only by the entire Commission or by one or more examiners as provided for in section 11 of the Administrative Procedure Act.

Now, this is the kind of th ing tha t bothers me, and of which I am 

somewhat wary. I think tha t there is a no man’s land developed here, 

and you are going to be in more trouble. It is obvious to me that if this 

were to go throug h it would be necessary to come back with appropriate amendments to clarify this situation.

Mr. Minow. Well, I would only say, Mr. Chairman, th at my un derstanding is th at none of those requirements or safeguards would be 

affected by the reorganization act. Whether the case is being heard 

by an examiner or a Commissioner or a panel, the same requirements 

would still apply.

The Chairman. Yes. But you can’t just assume tha t specific provisions of the law are going to be amended by implication.

Mr. Minow. Well, I don’t think they are amended, Mr. Chairman. 

Furthermore, there are certain cases now standing for the same proposition having to do, as 409(c) (1) does, with ex parte matters. So the 

law is established. I don’t think the reorganization plan would touch 

any of these points that we have been talking about in the last Series 

of questions.

The Chairman. I wish I could agree with you, but I don’t believe 

1 can. I do think they affect them, but which way they go I don’t 

know. As I say, I don’t find the same problem with the other three 

plans tha t have been presented, because it is not proposed to change 

the basic law.

I have used more time than I should have, however it does worry 

me as to its effect. It would seem to me, though, that something 

should be done to give these agencies an opportunity to go on witn 

the work and get it out. In another commission a couple of matters 

have been investigated and have been pending, I know, for over 2 

years and they haven’t come to any conclusion yet as to whether formal proceedings shall be held. That is just one example tha t with 

which I am familiar and we could go on with a lot more of them. 

These things just go on and on, and there is no way to serve the public 

and I agree in principle here that we should get something done. 

However, I do have some reservations about the method of going 

about it with reference to your agency now and I thin k you had better 

give some very serious consideration to it.

Mr. Thomson. Will the gentleman yield for just one question?

The Chairman. Yes.

Mr. Thomson. The cases tha t you mentioned, can they be handled 

under the present law, or is there inhibition in the present law that 

prevents a decision ?

The Chairman. I would say that I would not want to state categorically, because it is always my feeling tha t when an agency has 

something under active consideration, I don’t care to inquire into its 

merits or as to what should be done or not done. So I don’t know, but
REO RGA NIZA TION PL AN S 1 AND 2 OF 1961 69

I do know a lot of people are interested in cases like tha t not only in 

my own State but all over the country. It seems to me that we should 

do something to cooperate with these agencies and help them to do 

their jobs. At the same time I don’t want to set up a lot of revolving 

doors t hat nobody knows when to go in and when to come out.

Mr. Minow. Mr. Chairman, on one point I can speak, I am confident, for the Commission and all my colleagues unanimously, and that 

is th at we are dedicated to the expeditious handling of our work. I 

have only been there 2 months, but we have worked cooperatively and 

well together, and we all share the same purpose, we may disagree, 

but we all have the same purpose and objective m mind.

The Chairman. I appreciate that, and I think the agencies are to 

be commended. I am very glad that a lot has been done to relieve 

some of the problems tha t have developed in the past.

Mr. Bennett.

Mr. Bennett. Mr. Chairman, I take it from what you have said 

that you feel the best way to approach these changes you are talking 

about is by reorganization plan rather than by direct action of the 

Congress.

Mr. Minow. No, Mr. Bennett, I don’t take that view at all. I am 

here today for the FCC as a member of the Commission. I think there 

are different ways to go at this. I thin k the legislative way would be 

perfectly prop er way. I am here commenting on the Pres iden t’s reorganization plan, and I have not taken the position tha t this is the 

best way or the only way to do it.

Mr. Bennett. Did Mr. Landis discuss the plan with you before it 

was officially announced ?

Mr. Minow. Yes, he did.

Mr. Bennett. Did you approve it.

Mr. Minow. I gave him my suggestions, and I consulted with my 

colleagues.

Mr. Bennett. Did he talk with other members of the Commission, 

or just with you ?

Mr. Minow. Ju st with me, Mr. Bennett. I came over here and I 

had a talk with Chairm an H arris, and some people over on the Senate 

side, and reflected back the various comments of my colleagues. And 

some differences of opinion existed and still exist about what the plan 

is or does.

Mr. Bennett. When Mr. Landis first talked to you about these 

changes there were many more changes tha t you had in mind than 

are being presented ?

Mr. Minow. Th at is true, Mr. Bennett.

Mr. Bennett. And after discussing the matter you weeded the 

others out or excluded them and decided to go ahead ?

Mr. Minow. I didn’t personally. I gave my own views and some of 

the views of my colleagues, but I didn’t have anything to do with the 

changing or revision of a particu lar-----

Mr. Bennett. I thin k you must recognize that one of the problems 

we are confronted with is th is : Assuming that the suggested changes 

in the reorganization act are changes which should be made, the basic 

question is whether it should be accomplished in this fashion. If a 

litigant, for example, because of this reorganization act, were deprived 

of his present rights to review by the entire Commission, then I can see
70 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

no reason why other reorganization plans could not attack the whole 

fiber and structure of the Communications Act and make whatever 

changes the President and his advisors may see fit to make. But if th at 

is going to be the policy—and I very much suspect th at it is—then this 

committee might just as well fold up as fa r as having any legislative 

jurisdiction over any agency is concerned.

Mr. Minow. Mr. Bennett, this is my first experience w ith the reorganization plan. My understanding of it is tha t Congress gave the 

President the pow’er in effect to recommend to Congress a plan which 

could do certain things, either abolish a function, tran sfer a function, 

or delegate a function. It is up to Congress and the various committees here to decide whether this plan is a wfise one or a sensible one. w

I happen to think that it is. I don’t think this is the only way to meet 

these objectives, but I think that this particu lar plan would aid us 

very greatly in our work and enable us to proceed with more dispatch 

and efficiency. I don’t think th at it is the only way to go at this, and 

I certainly appreciate your concern about doing it thro ugh a legislative 

rath er than through a reorganization technique.

Mr. Bennett. Well, if this would be a precedent, then I repeat 

what I 'said. As far as this committee having legislative jurisdiction 

over the FCC or any of the other regulatory agencies, we might as 

well forget about it and turn them over to the President and the Government Operations Committee to handle. That is essence is what is 

happening here, aside from any of the objections one may have to 

the merits of the proposal set forth in the plan.

I want to ask you about the review staff. You said tha t you would 

retain the review staff, and even though you might assign the writing of an opinion to an individual Commissioner, you would want 

this staff still available to write the opinion for him.

Mr. Minow7

. Well, I don’t think I said write the opinion for him.

What I would like for them to do is continue to give the assistance 

and recommendations and judgments. We have such an enormous 

caseload tha t I don’t feel that. we could conscientiously, each of us, 

take on the responsibility of w riting all those opinions if we are going 

to do the job, because there are simply too many of them involving 

too many complex issues to give them the attention they deserve.

Therefore wye do need assistance.

Nowr

, there are various ways you can do this. I understand, for 

example, th at in some of the other agencies each Commissioner has »

a large staff of legal assistants in his own office to help him. I have

discussed this with my colleagues. My desire and my preference

would not be to move toward that system, but rather to follow what

was suggested actually in this committee’s repo rt earlier this year, «

keeping a technical staff available to help the Commissioners, but to

have each Commissioner take personal responsibility for an opinion,

and his name wmuld be on it.

Mr. Bennett. The problem w7e are trying to get at there, I think 

you will agree, is the delays tha t have occurred as a result of the 

Commission having reached a decision and then having turned the 

writing of the decision over to this review staff, and then finding 

tha t the review staff required more time in writing the opinion than 

it took for all the rest of the proceedings put together.
REORGANIZA TION PLANS 1 AND 2 OF 1961 71

Mr. Minow. I don’t think this is the case any longer, Mr. Bennett. 

When Fred Ford was Chairman 1 think grea t steps were taken to 

expedite that. 1 thin k now our review stall' is pretty current. Mr. 

Berkemeyer is here today, if we want to get in the record where we 

are. But I think this is not one of our biggest problems.

Mr. Bennett. I agreed when the recommendation was made with 

respect to doing away with the functions of the review staff as they 

had functioned in the past, because I think it has led to unnecessary 

delays. Now, I am not speaking about the personnel, I don’t know 

anything about the personnel of the review staff at all, so I can’t comment. But the procedure of having the staff go all over a record with 

which they have had no previous familiarity is certainly an unwieldly, impractical type of thing, and it has occasioned many delays. If 

you are going to abolish the review staff and make the individual Commissioners responsible for writing the opinions, and then still turn the 

job over to an opinion-writing staff so far as the facts of the case 

are concerned, then I think this suggested change accomplishes nothing. It can only accomplish something if the Commissioner writing the opinion has a staff who is as familiar or even more familiar 

with the facts as he is in the case and the procedure as it went along 

during its course before the Commission.

Mr. Minow. I don’t think I made myself clear. The latter is what 

I want to do. The way we have it now, they cannot even recommend 

anything to us. If we were free from the present restrictions, then 

they would be available to work with the Commissioners as a case 

developed and to carry it on through, which is what I would like to do.

Mr. Bennett. You would have them in on a case from the 

beginning?

Mr. Minow. I would have them in a lot earlier than they are now, 

now they get it when it is pretty well decided.

Mr. Bennett. I just throw that out as a suggestion, because I think 

that pa rt of the provision is a good one, provided it is arranged on a 

basis that will perm it the so-called experts to be in on a case from the 

beginning.

Mr. Minow. I agree with you, sir.

Mr. Bennett. Mr. Chairm an, you were here when Dean Landis 

testified the other day ?

Mr. Minow. Yes, sir.

Mr. Bennett. Wh at do you think of the idea of having an overseer 

in the White House with respect to these regulatory agencies ?

Mr. Minow. Well, I think I would be very much opposed to it. I 

feel that we are an independent agency in principle, aim, and objective. 

We are basically an arm of the Congress to administer and enforce 

the Federal Communications Act.

I do thin k tha t there is one wholly legitimate area in which the 

executive branch should be concerned, and tha t is to see that we are 

well organized, th at we are not too far behind in our work, and things 

like that. But I don’t feel tha t there should ever be an overseer or any 

supervisory function of our day-to-day work in the White House.

Mr. Bennett. Do you thin k it should be the function of someone in 

the White House to call in and inquire about the delay in handling 

particu lar cases?
72 REO RGANIZA TION PLANS 1 AND 2 OF 19 61

Mr. Minow. I thin k not, Mr. Bennett. I think if they want to inquire about it, say, a whole category, say, “How far are you behind 

in your safety and specialty applications ? Do you need some changes 

in the administration on that?” That, I think, would be proper, but 

never to talk about any specific case.

Mr. Bennett. If you have a man in the White House riding herd 

on the Commission, unless the authority is pretty well circumscribed 

you would, it seems to me, get into the same area th at has come in for 

so much criticism by this committee in the last few years.

Mr. Minow. I think that is right, sir.

Mr. Bennett. And therefore to get set on a White House overseer 

in charge of regulatory agencies seems to me not only unwise but 

highly improper.

Air. Minow. It certainly hasn’t existed, Mr. Bennett.

Mr. Bennett. It has been suggested, though.

I think that is all I have.

The Chairman. Air. Flynt ?

Air. Flynt. Mr. Chairman, I am inclined to be in accord with the 

objectives which you have announced in your statement. However, 

I would certainly like to concur with the chairman and also with Air. 

Bennett, th at I think the approach is what we might term a back-door 

approach. I would like to see many of these things accomplished by 

legislation, not by the Executive order.

I would hate to see the broad sweep changes made in the organic act 

of the Federal Communications Commission by anything except direct 

legislation.

I do want to join with the chairman and the other members of 

the committee in thanking you for the forthrightness of your statement. And while I agree with the objectives, I have to say tha t I 

very strongly disagree with the approach.

Than k you again, Mr. Chairman. It is a pleasure to have you before the committee.

Mr. AIinow. Thank you, Air. Flynt. I appreciate that.

Air. Springer. Air. AIinow, you have heard Dean L andis’ testimony 

last week ?

Air. AIinow. Yes, sir.

Air. Springer. With reference to what it was possible to delegate 

to one person under this reorganization act?

Air. AIinow. Yes, sir.

Mr. Springer. Do you agree with his analysis?

Air. AIinow. Well, I th ink theoretically the analysis is true. I don’t 

think it could ever happen tha t way.

Air. Springer. Are you a lawyer, Mr. AIinow ?

Mr. Minow. Yes, sir.

Air. Springer. Whatever is theoretically possible is the law, is th at 

right ?

Air. Minow. Yes, sir.

Mr. Springer. So there isn’t any question that this could be dealt 

with ?

Air. Minow. I thin k it could be; yes, sir.

Air. Springer. There isn’t any question about the power contained 

in the act, is there ?
REORGA NIZATION PL AN S 1 AND 2 OF 1961 73

Mr. Minow. Well, the act presently would perm it delegation to 

anyone on a non judicatory function.

Mr. Springer. But your answer, I take it, to my question is “Yes”?

Mr. Minow. Yes, sir.

Mr. Springer. I may ask you some questions here which bring 

out your philosophy, Mr. Minow, as well as trying to find out what 

can be done.

Mr. Minow. Fine. If I could answer one thing fu rther on the last 

question, if the Commission today wanted to delegate to one person 

all functions having to do with nonjudicatory cases, this could be 

done theoretically under our present act.

Mr. Springer. Now, in judicatory matters, this in essence adds to 

tha t in putting all the powers of the Commission subject to delegation.

Mr. Minow. By the Commission; yes, sir.

Mr. Springer. By the Commission.

Mr. Minow. Yes, sir.

Mr. Springer. Do you believe it to be possible to delegate all of 

the powers of the Commission to one person ?

Mr. Minow. Well, I will answer tha t this way. I would never be 

in favor of doing it, put it that way.

Mr. Springer. Under section 1, would the delegated powers be 

covered by a rule which would prescribe and specify matters to be 

delegated, and the class of personnel to which it would be assigned ?

Mr. Minow. That is right, sir.

Mr. Springer. Are you talking about minor matters to the Broadcast Bureau personnel ?

Mr. Minow. Yes. In my statement I tried to give an indication 

of the kind of matters tha t I thou ght were sensibly subject to 

delegation.

Mr. Springer. If this is not done, a new route would have to be 

adopted fo r each matter, is that true ?

Mr. Minow. Or we could continue as we often do now and just 

handle it by the full Commission.

Mr. Springer. Would this expand the Commission’s work and proceed to burden rather than lighten i t ?

Mr. Minow. I thin k not, Mr. Springer. I thin k it would simplify it.

Mr. Springer. In the case of all section 1 delegations rule, would 

not an individual Commissioner, examiner, or staff member who would 

perfo rm in a given case be prescribed by a la ter order of the Chairman under section 2?

Mr. Minow. I think not, Mr. Springer. It would depend entirely 

on the nature of the delegation which the Commission gave to the 

Chairman. But I thin k that the Commission would never do that.

Mr. Springer. You say it would not be possible for him to prescribe 

an o rder under section 2 ?

Mr. Minow. To prescribe-----

Mr. Springer. A late r orde r of the Chairman under section 2?

Mr. Minow. Well, my answer is I don’t think the Commission would 

ever permit such a thing.

Mr. Springer. He could do it though, could he not ?

Mr. Minow. If the Commission delegated tha t to him; yes, sir.
74 REORGANIZATION PLANS 1 AND 2 OF 196 1

Mr. Springer. As I understand it, there is no limit to the Chairman’s discretion in the person selected, so long as he is in the category of personnel specified in the rule.

Is th at correct ?

Mr. Minow. I think it is not correct, Mr. Springer.

Mr. Springer. Did you understand my question ?

Mr. Minow. Yes, sir.

Mr. Springer. Why do you say that is wrong ?

Mr. Minow. Because i t would depend upon the nature of the delegation made by the Commission. All this does is give the Commission the power to delegate.

What they do with it is another question. So it is impossible to 

answer tha t until you know the nature of the delegation the Commission undertook.

Mr. Springer. But there would n ot be any limit ? I do not think 

you understand. There would not be any limit on the Chairman’s 

discretion in the person selected as long as he is in the category 

of personnel specified in the rule as made by the Commission?

Mr. Minow. Provided that the Commission gave him tha t power.

Mr. Springer. Now, would not the Chairman have the power himself to give the good assignments to Commisisoners who played 

ball ?

Mr. Minow. Well, I would still say, provided tha t the Commission gave it to him. If the Commission gave him such arbitrary power 

he could do so.

Mr. Springer. Now, Mr. Minow, I have known a great many C hairmen in the 11 years I have been on this committee, under both Democrats and Republicans, and most of the complaints that have come to 

me, at least on this Commisison is tha t this is the thing tha t is done.

And a particular instance at the present time is you do not have 

assignments to the different Commissioners, but you, certainly, do at 

the examiner level and all of those below the level of the Commissioners at the present time.

Now, are you not extending this, if you so see fit to delegate it to 

the Commissioner—and I am talking about to the Chairmen—this 

righ t which I anticipate you are going to do, as I understand it, and 

he could give the good assignments to the persons who do play ball 

with him.

Mr. Minow. Well, Mr. Springer, I think this would depend again 

on what my colleagues decided that they wanted the Chairmen to do, 

because unless it delegated it to me, I could not redelegate it to someone else.

Mr. Springer. You are a little bit evasive, but I will-----

Mr. Minow. No, I think tha t is true, Mr. Springer, because if this 

plan is passed there is nothing whatever tha t I could do unless my 

colleagues decided to delegate to me or to others in the Commission 

some authority.

I could not do anything on the strength of the plan.

Mr. Springer. I understand that. I think th at is what you are going to get if this plan goes throu gh, because that is what you have 

asked for.

You are certainly going to get the power to delegate this in your 

own hands, otherwise you would not be coming in and asking for it, 

and that is why I ask that as a prerequisite.
REORGANIZATION PLANS 1 AND 2 OF 19 61 75

Now these are the personal psychological factors that are always 

fa r more important than law that I found in the assignment of var ­

ious things that are done in the Commission.

Now the second thi ng : Would not the Chairman have the power to 

select a person for such assignments whose views on the issues in a 

particu lar case coincide with his own ?

Mr. Minow. Again, it would depend on the nature of the delegatio n by the Commission.

I have assured my colleagues, and they are all here and can certainly speak for themselves, that insofar as I am concerned, I would 

assign cases on a rotational basis.

Mr. Springer. Thirdly, could not you, as the Chairman, under this 

kind of a delegation, make a recalcitrant Commissioner valueless and 

jeopardize his appointment by giving him no assignments of importance ?

Mr. Minow. Well, if the Commisison gave me such broad powers 

and if I abused them in such a way, all it would take would be for 

the Commission to take it back.

Mr. Springer. I understand what you are talking about, Mr. Minow.

But they are not going to get it back after you get it, I feel sure 

of that.

Mr. Minow. Well, it would be-----

Mr. Springer. You have sufficient people on the Commisison, I take 

it, to give this or you would not be coming in here asking for it. I 

am assuming that is it.

I am assuming th at you are not coming in here with some plan t hat 

you set up that is not going to be-----

Mr. Minow. Well, I cannot speak for my colleagues. I can only 

say thi s: I think they will agree with me on this, tha t in the first few 

months tha t we have been together we have gotten along famously 

as a Commission.

Mr. Springer. Well, this the new era, is it not; you have not been 

■on it for 2 or 3 years '?

Mr. Minow. I was saying, as a beginning.

Mr. Springer. I am not trying to get into an argument with you. 

I am just taking the experience of previous Chairmen. I have gone 

through this process before.

Another one: The power of the Commission to harass litigants 

before the Commission by selecting personnel to hear their cases 

whose views were antagonistic to the litigants and I want to give you 

some examples:

Delays in the scheduling of hearings, adverse interpretations of 

issues, adverse rulings on evidence, expanded burdens of proofs, 

•delays in the initial decision, slanted initial decisions.

Is all of that possible if the power is delegated-----

Mr. Minow. I thin k not, the way we do it now. The examiner 

takes these cases in rotation. This is the way it is done in most courts.

This is the way I would want to do it here.

Mr. Springer. And it also gives the power, generally, to mold 

the record of evidence and the initial decisions in the adjudicatory 

cases in the fashion desired by the Chairman?

Mr. Minow. Well, I think not. Mr. Springer.

Mr. Springer. Now while the Chairman would have the powers— 

and I am anticipating th at you are going to get them—it is, of course,
76 REORGANIZA TION PLANS 1 AND 2 OF 196 1

possible that he would not abuse them, but what is to prevent him 

but his own self-restraint ?

Mr. Minow. My colleagues could prevent me. If not, Congress 

could.

Mr. Springer. You mean, they are going to take back these powers 

maybe a year from now if they do not like the way it has been done ?

Mr. Minow. Well, it is certainly within their righ t to do so. If 

I were in their position, I certainly would.

Mr. Springer. Now, I want to go a little fur the r: Is the Chairm an 

not himself subservient ?

Mr. Minow. I think not.

Mr. Springer. He serves only at the pleasure of the President?

Mr. Minow. That is correct, sir.

Mr. Springer. Having these powers, would it not be a miserably 

inept Chairman who could not produce action tha t the Commission 

or the President wanted if these powers were given him?

Mr. Minow. Well, I can only tell you tha t we are seven Commissioners. We often have six different views on a problem. They never 

bear any resemblance to a party.

We have never had a party vote th at I know of. It is just a matter of looking at a problem from seven different points of view.

Mr. Springer. Mr. Minow, when did you first learn of any plan 

to reorganize the Commission ?

Mr. Minow. Before I came down here. I read it in the paper 

when Dean Landis announced his thing—I read it, I think, in December or November.

Mr. Springer. When were you not officially notified of your appointment, but when were you informally notified of your appointment to this Commission ?

Mr. Minow. Shortly after the first year.

Mr. Springer. Just before the new administration came in?

Mr. Minow. That is right.

Mr. Springer. Did you go down to the White House to talk with 

Mr. Landis about this?

Mr. Minow. When I came to Washington I met Mr. Landis socially. 

After I started my work and was here several weeks I had my first 

talk with Mr. Landis.

Mr. Springer. All right. Now, I am not asking what was said.

Since you were appointed, how many trips have you made down 

to the White House—I am talking about the executive branch now— 

down to the White House or down to Mr. L andis’ office?

Mr. Minow. Well, I would say four or five, and I am perfectly willing to say that most of them were about the problem we are working 

on with respect to spectrum allocation

Mr. Springer. Nothing about reorganization?

Mr. Minow. I saw Dean Landis either once or twice about reorganization.

Mr. Springer. Did you ever ta lk to Dutton?

Mr. Minow. Fred Dutton ?

Mr. Springer. Yes.

Mr. Minow. Yes, I have talked with him. I have never talked 

with him about the reorganization.
REORGA NIZATION PLANS 1 AND 2 OF 1961 77

Mr. Springer. Have you talked with him about the FCC?

Mr. Minow. I had a note from him when I got here asking for a 

periodic report on our work.

Mr. Springer. Now, I know you did tha t because t hat is a matter 

of record.

Now, I am trying to find out what did you do off the record. Did 

you talk with Mr. Dutton ?

Mr. Minow. Never, never about the FCC. No, sir.

Mr. Springer. Well, how many times have you been to the White 

House to see Mr. Dutton ?

Mr. Minow. In the four or five times, that is what I included.

Mr. Springer. And you say that would be the maximum? It 

would be five times ?

Mr. Minow. Approximately, sir. I was over there the other day. 

I do not think I counted that.

I would say approximately that. I am including in tha t visits to 

Dean Landis’ office in the Old State Department Buildinc.

Mr. Springer. If you were voted these powers I am not talk ing 

about just you, Mr. Minow-----

Mr. Minow. I understand.

Mr. Springer. I am talking about any chairman, whether he be 

Republican or Democrat.

Mr. Minow. I am taking it in that spirit.

Mr. Springer. Under these circumstances, how could we, here on 

this committee, expect the Commission to normally take action that 

was contrary to-----

Mr. Minow. I am sorry. How could you what ?

Mr. Springer. Und er these circumstances, how could we, on this 

committee, expect you, as Chairman, to normally take action that was 

contrary to the White House views ?

Mr. Minow. Well, my—in the first place, I have never had any 

White House views on anything at the Commission except w ith respect 

to this reorganization plan.

And, secondly, I regard my obligation as being to the law. I feel 

I must administer the act which Congress has given us.

Mr. Springer. I found out from past experience, Mr. Minow, th at 

many litigants are close to the White House.

Mr. Minow. Many what ?

Mr. Springer. Many litigants.

May I say that has been true under both administrations, and not 

just one, so I am not being partisan.

Some litigants who are close to the White House are frequently 

litigants before the Commission.

Would they not, naturally, tend to be favored even in the absence 

of any action by the White House ?

Mr. Minow. Well, I certainly would not, as far as I am concerned— 

can w’e go off the record a minute ?

Mr. Springer. Yes.

(Discussion off the record.)

Mr. Springer. Does not section 2 in actual effect vest in the Pre sident the policy control over the Commission t ha t was recommended 

by Landis’ report ?

Mr. Minow. Does it vest in the-----

73 53 1—61------ 6
78 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

Mr. Springer. Let me read it again. Does not section 2, in actual 

effect, vest in the President the policy to control over the Commission 

that was recommended in Landis’ report ?

Mr. Minow. I think not, Mr. Springer.

Wha t it does is vest in the Chairman, if the Commission so decides, 

certain powers, but I do not think—it certainly doesn’t go back to the 

White House.

Mr. Springer. You are familiar with the section of the code with 

reference to censorship, are you not ?

Mr. Minow. Yes, I am, sir.

Mr. Springer. I am referring to the speech now, Mr. Minow, because it is certainly a very good part of your outlook, as I see it, before 

the NAB last week.

Do you not intend to do something about programing?

Mr. Minow. Well, 1 would certainly hope th at we could do something about programing at the FCC.

My colleagues before me had started to do something about program ing; yes, sir. I intend to help to continue it.

Mr. Springer. Just how do you expect to accomplish this?

Mr. Minow. I would hope very much to have a tighte r insistence on 

performance by a licensee, matching his promise when he gets a 

license.

Mr. Springer. By that, do you intend to see tha t he does certain 

types of programing?

Mr. Minow. Well, we very often are confronted with the problem of choosing between a number of people who would like to 

broadcast and in making that selection we look to see what they 

propose to do with their license.

Mr. Springer. What about those who are presently already 

licensed ?

Mr. Minow. Well, each person who has a license has made certain promises in getting his license, when he made his application.

Mr. Springer. Do you expect to exert certain pressures upon tha t 

licensee to do certain types of programing?

Mr. Minow. Not to do a certain type of programing, sir.

I would like to see tha t he meets the promises tha t he made.

Mr. Springer. I beg your pardon?

Mr. Minow. I said I would like to see that he meets or fulfills the 

promises that he made.

Mr. Springer. I take it from the speech tha t you are very critical 

of programing.

Mr. Minow. I am not critical of all programing. I am critical of 

some of it.

I do not feel tha t the industry has lived up to its great potential, 

and I have asked the industry to, itself, take on the task of improving 

the quality and the range and the diversity of programing it brings 

to the people.

Yes, sir.

Mr. Springer. And you used the words “there is nothing permanent or sacred about a broadcast license.”

Mr. Minow. That is right, Mr. Springer.

Nfr. Springer. And in connection with tha t you used the words 

■“vast wasteland.”
REORGANIZATION PLANS 1 AND 2 OF 1961 79

Mr. Minow. Not in connection with that, Mr. Springer.

Mr. Springer. Well, tha t is all part of the speech, Mr. Minow.

Mr. Minow. Yes. I thought I was careful, however----

Mr. Springer. Do you think tha t any NAB man down there or 

anybody in the public interpreted that as other than unless programing is changed substantially, and I am not talking a little bit, 

but substantially, tha t you do intend to do something?

Mr. Minow. Well, 1 think people can interpret it as they will.

I will hold to the statement that there is nothing permanent or 

sacred about a broadcast license. That is why we are there, after all.

Mr. Springer. But you are not doing anything about censorship?

Mr. Minow. No, sir.

Mr. Springer. Would you be willing to take the opinion of people 

who have spent their lifetime in the business—not in the licensee business—as an opinion of what you meant by that as they interprete d it?

Mr. Minow. Well, everyone is entitled to their opinion, and I would 

certainly welcome hearing it.

Mr. Springer. Well, 1 speak now from one of the publications of 

the industry which has, as far as I know, no license but is only interested in the public interest.

1 want to quote these words :

Mr. Minow’s speech las t week made the Commissions’ purpose even clearer. 

There can be no doubt now th at he has embarked on a calculated plan of program controls.

And it may be assumed that he believes he has the necessary votes to execu te 

it. It seems to us th at the real message at the NAB convention las t week was 

th is : Broadcasting must invigorate itself to keep wh at freedom it ha s and, indeed, to reclaim the freedom it has lost.

Now, it seems to me there is an opinion exactly as to how they 

interpreted what you intended to do.

Mr. Minow. It certainly is. It is an opinion of one of the trade 

press, as you pointed out.

There have also been opinions voiced by many people who are not 

in the trade press, to the contrary.

Mr. Springer. Yes, I read some of those, but it seems the great 

majority has been the other way, or a t least, the ones that were on my 

desk from coast to coast are very substantially against this.

I will be glad to let you have—I think I saw most of those tha t 

were the other way.

Mr. Minow. Well, I think not, Mr. Springer. I would be glad to 

supply you with those, but, in any event, I am not there. I do not 

regard my function is to please the trade press.

Mr. Springer. Now, here is one that is not the trade press. This 

is just one that I would say is a coast-to-coast publication in the newspaper business and it is not local at all.

Bu t the real point is th is : Who is going to permit what kind of entertainm ent 

TV is to offer? If th at is not an implied plug for governmental censorship, 

then it is hard to figure j us t w hat Mr. Minow is talking about.

It all smacks of the old business of in tellectu al pur itanism. Somebody doesn’t 

like the hooks you are reading, public tastes are too low and need to be elevated, 

so the answer is su bst itute official-----

Mr. Minow. I tried to make it as clear as I could in tha t speech 

tha t I would never want any dual credit judgment here to control what 

the taste is.
80 REORGANIZATION PLANS 1 AND 2 OF 1961

I have called upon, I think, as p art of my role, p art of the Commission’s role-----

Mr. Springer. This is the last p ara gra ph:

When people perm it officials to do th at they open up a rea l wasteland.

Mr. Minow, there are a few things here I wanted to ask you about 

with reference to your speech, because I think it gave us pretty much 

of a psychological outlook.

I invite you to sit down in fro nt of your television set when your station goes 

on the ai r and stay there withou t a book, magazine, newspaper, profit and loss 

sheet, or ratin g book to dis tract you, and keep your eyes glued to th at set until 

the station signs off. I can assure you th at you will observe a vast wasteland.

Mr. Minow. Yes, sir.

Mr. Springer. I am talking about the entire committee now and 

not just this speech, I was on the Oversight Committee. I was the one 

most critical of programing.

I have been making a fight for good programing.

In my own district I got a very definite reaction when I made public 

my views. A lot of people wrote to me and I was interested.

I looked them up in my city director where I got those from and 

they said they wanted to be entertained, and “please do not give us 

something tha t we do not understand.”

Now, I do not know whether you are the Phi Beta K appa now, are 

you?

Mr. Minow. I am not, Mr. Springer.

Mr. Springer. Well, I take it you are a pretty bright fellow whether 

you are or not.

Mr. Minow. Thank you.

Mr. Springer. Now, are you intending to elevate the culture standards of programing to your intellect?

Mr. Minow. No, I am not.

Mr. Springer. At what level are you thinking in terms of-----

Mr. Minow. I am trying to help give a broader range of choice and 

alternatives to people. I am particularly interested in children’s pro ­

graming, as I tried to state.

If I do not feel, and I think it is perfectly within my job to urge the 

industry to improve the quality of its programs-----

Mr. Springer. Let’s take children’s programs, because that intrigued me. I have three who sit in front of it all the time.

Is there a time, generally, that the industry has set aside for children?

Mr. Minow. I think probably the closest—I do not thin k there really 

is, but the closest would be in the late afternoon.

Mr. Springer. All right. And early evening from around 4 o’clock 

to 6:30, with the exception of the news.

Is tha t not correct ?

Would you say that the children’s programs ought to be 7 :30, 8 :30, 

9: 30, and 10 o’clock ?

Mr. Minow. No, I do not think it is my prerogative or judgment to 

say.

Mr. Springer. All right. You have been talking in this speech, have 

you not, about a prime time ?

Mr. Minow. Yes.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 81

Mr. Springer. Are you in tending to put the prime time fo r the children’s prog ram-----

Mr. Minow. No.

Mr. Springer. Well, I just want to be sure tha t I understood that.

Now, you say that of 73i/2

 hours of prime evening time, the networks 

have tentatively scheduled 59 hours on categories of adventure, situa ­

tion comedies, and so forth.

Wha t would you substitute fo r that?

Mr. Minow. It is not a question what I, personally, would substitute, 

Mr. Springer. It is a question of what the station promised to do 

when it got its license and it is a question of whether they are serving 

the interest of the community where they have their license.

I never proposed tha t any one of the governments say “Put this 

program on,” or “Take that program off.”

We might as well move to Russia.

What I have done is called upon the industry to elevate its standards 

to improve quality, the diversity of the programing it is giving to 

the people.

Mr. Springer. All right. Now, aren’t you, in effect, doing just that 

and substituting your own opinion ?

Mr. Minow. I think not, sir.

Mr. Springer. Let me read this.

I like westerns and priva te eyes, too, but a steady diet for the whole country 

is obviously not in the public interest.

Do you believe tha t statement?

Mr. Minow. I certainly do.

Mr. Springer. Now, are you not substituting your judgment for 

theirs ?

Mr. Minow. No, I am not. I am calling upon the industry and the 

licensees to reflect, to try to find out—before I got here, Mr. Springer, 

last July the Commission adopted a programing policy afte r long 

exhaustive hearings. We were on the record on it.

The Commissioners, I supported. I want to find and help and encourage the licensees to serve their communities.

Tha t is what I thin k o ur job is down there, and I hold to the view 

tha t broadcast license is not permanent. Otherwise, there would be 

no Commission.

Mr. Springer. But in th at sense, Mr. Minow, aren’t you in fac t substitutin g your judgm ent fo r theirs?

Mr. Minow. I thin k not. I have told nobody what to put on the 

air.

Mr. Springer. Well, you said that a steady diet of this is not in the 

public interest.

Mr. Minow. This is my personal opinion. I think I am entitled to 

that.

Mr. Springer. And tha t is what you are going to follow through 

on, I take it ?

Mr. Minow. Well, I think I should be judged on what I do, Mr. 

Springer.

Air. Springer. Well, Mr. Minow, you have a pretty good answer for 

your side and while I do not think you are very responsive to these 

questions—or some of them—I will go on for a minute.
82 REORGANIZATION PLANS 1 AND 2 OF 1961

Mr. Minow. All right. You know, we, from Illinois, are used to 

this kind of stuff.

Mr. Springer (reading) :

You know, newspaper publishers tak e popularity ratings, too. The answers 

are pretty clear. It is almost alwa ys the comics, followed by the advice to the 

lovelorn columns. But, ladies and gentlemen, the news is still on the fro nt page 

of all newspapers, the editorials are not replaced by more comics, the newspapers have not become one long collection of advice to the lovelorn.

Yet newspapers do not need a license from the Government to be in business. 

They do not use public property. But in television, where your responsibilities 

as public trus tees are so plain, the moment th at the rating s indicate that westerns are popular the re are new imitation s of westerns on the ai r fa ster tha n 

the old coaxial cable could tak e u s from Hollywood to New York.

Now, I don’t know but what these gentlemen do take ratings.

We have had hearings on ratings to find out whether they are honest 

enough.

Would you recommend that they put on there something tha t does 

not have much of a listening interest or audience interest?

Mr. Minow. No, I do not know whether—what ratings are honest 

or not. I have no information about it.

What I am concerned about is tha t they should not be the sole 

guide.

Just because the majority may want something all the time, that 

does not mean th at other people in the audience should not seek some 

programing too.

Mr. Springer. Back here at the beginning of this speech, you also 

indicate tha t—Mr. Chairman, I will not be too much longer, but I 

think these are pretty important points to be covered.

Your industry possesses the most powerful voice in America.

With tha t sentence, I agree.

It ha s an inescapable duty to make th at voice ring with intelligence and 

with leadership. In a few years, this exciting industry has grown from a 

novelty to an instrument of overwhelming impact on the American people. It 

should be making ready for the kind of lead ership th at newspapers and magazines assumed years ago, to make our people aware.

Are you intending to include more news in your broadcasts?

Mr. Minow. Well, I would hope so, but again, it is not what I want 

that is going to count.

It is going to be what the licensee determines that his community 

wants. We are in favor on tha t point of encouraging editorializing 

by licensees.

Mr. Springer. Are you encouraging editorializing, Mr. Minow, 

without expressing the opposing view ?

Mr. Minow. With out what, sir ?

Mr. Springer. Without giving expression to the other view-----

Mr. Minow. No, we have a doctrine, Mr. Springer, under our law 

known as the “fairness” doctrine.

We want broadcasters to take a position but we want them to give 

everyone in the community a f air chance to be heard.

Mr. Springer. I do not know whether you know, but I have a clipping on my desk with reference to news reports and of the ones in the 

coming season, there is only one that has been taken up.

Mr. Minow. One what ?
REORGANIZATION PLANS 1 AND 2 OF 196 1 83

Mr. Springer. Only one option has been taken on the news, on a 

half-hour news program this fall.

There are two now awaiting sponsorship and have been for 6 weeks. 

They have not gotten an indication of sponsorship at all—and tha t 

is prime time, around 10, 10: 30 in the evening.

Now, my point, Mr. Minow, i s: W hat type of thing are you intending to project here, whether or not it is being accepted by the public?

Mr. Minow. Well, I think time will tell. I do not intend to impose 

my views or my taste on anybody.

Mr. Springer. You say here: “Clean up your own house or the 

Government will do it for you.”

Mr. Minow. I would like you to read the whole sentence there.

Mr. Springer. All right.

It would not sur prise me if some of you had expected me to come here today 

and say, in effect, “clean up your own house or the Government will do it for 

you.”

* Well, in a limited sense, you would be righ t. I have ju st said it.

Now, tha t-----

Mr. Minow. Well, the next paragraph says that it is not in that 

spirit “that 1 come here,” if I recall correctly.

Mr. Springer. Well, you go on to say tha t you are trying to help 

broadcasting but you do say that, and I think tha t you meant there 

that unless they clean up their house th at you are going to do it for 

them or the Government is going to do it for them.

Mr. Minow. I think not.

Mr. Springer. That is the way I interpreted it and tha t is the way 

I think most of the NAB people did, because this statement is the one 

that, was most quoted to me when I went up there to the reception the 

other night.

Now, do you believe that they are in a mess ?

Mr. Minow. Well, I would not want to characterize it with that 

word.

I do think there is substantial room for improvement.

Mr. Springer. Well, that, it is a wasteland? That would be a 

better one, would it not ? You have used that word.

Air. Minow. I thin k much of television programing is, yes, sir.

Air. Springer. Well, you said if you sit there in the evening hours 

and you just see a vast wasteland.

, I take it tha t is what you meant and that is what you did say, did

you not ?

Mr. AIinow. That is right, sir.

Air. Springer. Let’s take, for instance, sports, which I happen to

♦ be interested in.

AVould you call that segment of the industry a vast wasteland ?

Air. AIinow. I certainly would not.

Air. Springer. This would not be one area you would try to clean 

up, would it?

Mr. AIinow. Well, I do not want, to accept the characterization 

that, I am going to clean up anything.

Air. Springer. Well, I am glad to hear that, because I would like 

to see this testimony released so th at the people could know what you 

did say.
8 4 REORGANIZA TION PLAN S 1 AND 2 OF 196 1

Mr. Minow. Well, I think all they would have to do would be to 

read what I said, Mr. Springer.

I do not think I have said anything here tha t is different.

Mr. Springer. Mr. Chairman, that is all.

Mr. Harris. I think in view of the fact, in case there is any question regarding it, tha t is the speech, of course, and in view of the 

proposed delegation of authority under the plan here, I do think it 

would be advisable, if there are no objections, for the entire speech 

to be included in the record.

Mr. Rogers of Texas. Could I inquire, Mr. Minow, if it is your 

wish that it be included ?

Mr. Minow. It would be fine with me.

Mr. Harris. If there is no objection, it will be included in the 

record at this point in its entirety.

(The speech above referred to is as follows:)

Address by Newton N. Minow, Chairman, Federal Communications Commission, to the 39th Annual Convention of the National Association

of Broadcasters, Washington, D.C., May 9, 1961

Governor Collins, distinguished guests, ladies and gentlemen, tha nk you for 

thi s opportunity to meet with you today. This is my first public address since 

I took over my new job. When the New Frontie rsm en rode into town, I 

locked myself in my office to do my homework and get my fee t wet. Bu t apparently I haven’t managed to sta y out of hot water. I seem to have detected 

a cer tain nervous appreh ension about what I might say or do when I emerged 

from tha t locked office for this, my maiden station break.

Fir st, let me begin by dispelling a rumor. I was not picked for this job 

because I regard myself as th e faste st d raw on the New Frontier.

Second, let me st ar t a rumor. Like you, I have carefully read President 

Kennedy’s messages about the regulatory agencies, conflict of inte rest, and the 

dangers of ex par te contacts. And, of course, we at the Fed eral Communications Commission w ill do our part. Indeed, I may even suggest th at we change 

the name of the FCC to th e Seven U ntouchable s!

It may also come as a siwprise to some of you, but I wa nt you to know that 

you have my adm iration and respect. Yours is a most honorable profession. 

Anyone who is in the broadcasting business has a tough row to hoe. You earn 

your bread by using public property. When you work in broadcasting you 

volunteer for public service, public pressure, and public regulation. You must 

compete with other att racti on s and other investments, and the only way you 

can do it is to prove to us every 3 y ears th at you should have been in business 

in the first place.

I can think of ea sier ways to m ake a living.

Bu t I cannot think of more satisfying ways.

I admire your courage—b ut th at doesn’t mean I would make life any easier 

for you. Your license lets you use the public’s airw ave s as tru stees for 180 

million Americans. The public is your beneficiary. If you want to stay on 

as trustees, you must deliver a decent return to the public—no t only to your 

stockholders. So, as a representative of the public, your health and your product are among my chief concerns.

As to your healt h: let’s tal k only of television today—1960 gross broadcast 

revenues of the television ind ust ry were over $1,268 m illion ; profit before taxes 

was $243,900,000 an average ret urn on reven ue of 19.2 percent. Compared 

with 1959, gross broadcast revenues w ere $1,163,900,000, and profit before taxes 

was $222,300,000, an average ret urn on reven ue of 19.1 percent. So, the percentage increase of tota l revenues from 1959 to 1960 was 9 percent, and the 

percentage incre ase of profit was 9.7 percent. This, despite a recession. For 

your investors, the price ha s indeed been right.

I have confidence in your health .

But not in your product.

It is with thi s and much more in mind th at I come before you today.

One editoriali st in the trade press wrote th at “the FCC of the New Fro ntier 

is going to be one of the toughest FCC’s in the history of broadcast regula7
REORGANIZATION PLANS 1 AND 2 OF 1961 85

tion.” If he meant tha t we intend to enforce the law in the public interest, 

let me make it perfectly clear th at he is right—we do.

If he meant that we intend to muzzle or censor broadcasting, he is dead 

wrong.

It would not surprise me if some of you had expected me to come here 

today and say in effect, “Clean up your own house or the Government will do 

it for you.”

Well, in a limited sense, you would be right—I’ve jus t said it.

But I want to say to you earnestly tha t it is not in that spirit tha t I come 

before you today, nor is it in tha t spirit tha t I intend to serve the FCC.

I am in Washington to help broadcasting, not to harm it; to strengthen it, 

not weaken i t ; to reward it, not punish i t ; to encourage it, not threaten i t ; 

to stimulate it, not censor it.

Above all, I am here to uphold and protect the public interest.

What do we mean by “the public interest”? Some say the public interest 

is merely wha t interests the public.

I disagree.

So does your distinguished president, Governor Collins. In a recent speech 

he said, “Broadcasting to serve the public interest, must have a soul and a 

conscience, a burning desire to excel, as well as to sell; the urge to build the 

character, citizenship, and intellectual stature of people, as well as to expand 

the gross national product * * * By no means do I imply tha t broadcasters 

disregard the public interest * * * But a much better job can be done, and 

should be done.”

I could not agree more.

And I would add tha t in today’s world, with chaos in Laos and the Congo 

aflame, with Communist tyranny on our Caribbean doorstep and relentless pressure on our Atlantic alliance, with social and economic problems at home of the 

gravest nature, yes, and with technological knowledge t ha t makes it possible, as 

our President has said, not only to destroy our world but to destroy poverty 

around the world—in a time of peril and opportunity, the old complacent, unbalanced fa re of action-adventure and situation comedies is simply not good enough.

Your industry possesses the most powerful voice in America. It has an inescapable duty to make tha t voice ring with intelligence and with leadership. 

In a few years, this exciting industry has grown from a novelty to an instrument of overwhelming impact on the American people. It should be making 

ready for the kind of leadership that newspapers and magazines assumed years 

ago, to make our people aware of their world.

Ours has been called the jet age, the atomic age, the space age. It is also, 

I submit, the television age. And ju st as history will decide whether the leaders 

of today’s world employed the atom to destroy the world or rebuild it for mankind’s benefit, so will history decide whether today’s broadcasters employed their 

powerful voice to enrich the people or debase them.

If I seem today to address myself chiefly to the problems of television, I don’t 

want any of you radio broadcasters to think we’ve gone to sleep at your switch— 

we haven’t. We still listen. But in recent years most of the controversies and 

cross-currents in broadcast programing have swirled around television. And so 

my subject today is the television industry and the public interest.

Like everybody, I wear more than one hat. I am the Chairman of the FCC. 

I am also a television viewer and the husband and father of other television 

viewers. I have seen a great many television programs tha t seemed to me 

eminently worthwhile, and I am not talking about the much bemoaned good old 

days of “Playhouse 90” and “Studio One.”

I am talking about this past season. Some were wonderfully entertaining, 

such as “The Fabulous Fifties,” the “Fred Astaire Show,” and the “Bing 

Crosby Special” ; some were dramatic and moving, such as “Conrad’s Victory” 

and “Twilight Zone” ; some wyere marvelously informative, such as “The Nation’s Futu re,” “CBS Reports,” and “The Valiant Years.” I could list many 

more—programs that I am sure everyone here felt enriched his own life and that 

of his family. When television is good, nothing—not the theater, not the magazines or newspapers—nothing is better.

But when television is bad. nothing is worse. I invite you to s it down in front 

of your television set when your station goes on the air and stay there without 

a book, magazine, newspaper, profit and loss sheet or rating book to distract 

you—and keep your eyes glued to tha t set until the station signs off. I can 

assure you tha t you will observe a vast wasteland.
86 REORGANIZA TION PLA NS 1 AND 2 OF 19 6 1

You will see a pr oc essio n of ga me show s, vio len ce, au di en ce part ic ip ati on 

show s, fo rm ula come die s ab out to ta lly un be lie va ble fa m ilies, blood an d th under , 

may he m, vio len ce, sadism , m ur der , w es te rn ba d me n, w es te rn good me n, pri vate 

eyes, ga ng st er s, mo re violen ce, an d ca rtoo ns . And, en dles sly, co mm er cials— m an y sc re am in g, cajolin g, an d off endin g. An d m os t of all, bo red om . Tru e, 

yo u will see a few th in gs yo u will en joy. B ut th ey will be ve ry, ve ry few . And 

if yo u th in k I ex ag ge ra te , tr y it.

Is th ere one pe rson in th is roo m w ho clai m s th a t bro ad ca st in g can ’t do 

bett er?

Well, a glan ce a t nex t se as on ’s pr op os ed pro gr am in g ca n give us li tt le hea rt . 

Of 73% ho ur s of pr im e ev en ing tim e, th e net w or ks ha ve te nta ti vely sc he du led 

59 hou rs to ca te go ries of “a ct io n-a dv en tu re ,” si tu ati on come dy, var ie ty , quiz, 

and m ovies .

Is th ere one ne tw or k pre si den t in th is roo m wh o claim s he can ’t do bet te r?

Well, is th er e a t le ast one net w or k pre si dent wh o be lie ve s th a t th e oth er n etw or ks c an’t do b et te r?

Gen tle men , yo ur tr u st ac co un ting w ith you r be ne ficiar ies is ov erdu e.

Nev er h av e so f ew ow ed so m uc h to so man y.

W hy is so mu ch of television so ba d? I ha ve heard m an y an sw ers : de m an ds 

of yo ur a d v e rt is e rs ; co mpe tit ion fo r ev er hig her ra tin g s ; th e ne ed alw ay s to a ttr a c t a m as s audie nce; th e high co st of tele vi sion p ro g ra m s; th e in sa ti able 

appeti te fo r pr og ra m in g m ate ri al—th es e are some of th em . Unq ue stio na bly, 

th es e are to ug h prob lems n ot su sc ep tib le to e as y an sw er s.

B ut I am no t conv ince d th a t yo u ha ve tr ie d h ard en ou gh to solve the m.

I do no t ac ce pt th e id ea th a t th e pre se nt ov er al l pro gra m in g is aim ed ac ­

cura te ly a t th e pu blic ta st e. The ra ti ngs te ll us on ly th a t some peop le ha ve 

th eir television se ts tu rn ed on an d of th a t nu mbe r, so m an y are tu ned to one 

ch an ne l and so man y to a noth er . The y do n’t t el l us w hat th e p ub lic m ig ht w at ch 

if th ey were off ere d h alf a dozen addit io nal cho ice s. A ra ti ng, a t best, is an in ­

dic at io n of how man y peop le sa w w hat yo u ga ve them . U nfo rt unat el y, it do es 

not re ve al th e de pth of th e pen et ra tion, or th e in te nsi ty of r ea ct io n, an d it n ev er 

re vea ls w hat th e ac ce pt an ce wou ld hav e been if w hat yo u ga ve th em ha d been 

b ett er—if all th e fo rc es of a rt and cre ati vit y an d dari ng and im ag in at io n had 

be en un leas he d. I be lie ve in th e pe op le’s go od sens e an d good ta st e, an d I am not 

co nv ince d th a t th e pe op le’s ta st e is a s low a s som e of you as su me.

My co nc ern w ith th e ra ti n g se rv ic es is no t w ith th eir ac cu ra cy . Perh aps th ey 

a re a cc ur at e. I re al ly do n’t kn ow . W hat , then , is wro ng w ith th e ra ti ngs? I t ’s 

not been- their acc ur ac y—it’s bee n th eir use.

C er ta in ly , I hope y ou will agre e th a t ra ti ngs shou ld ha ve li tt le influ en ce w he re 

ch ildre n are co nc erne d. The bes t est im at es in dic at e th a t duri ng th e hours of 

5 to 6 p.m. 60 pe rc en t of yo ur au di en ce is comp osed of ch ildre n un der 12. And 

m os t yo un g ch ildr en toda y, be lie ve it or no t, sp en d as muc h tim e w at ch in g te le ­

vision as th ey do in th e sch oo lro om . I re peat—le t th a t si nk in—mos t yo un g ch ildr en to da y sp en d as mu ch tim e w at ch in g tel ev ision as th ey do in th e scho olroo m. It used to be sa id t h a t th ere w er e th re e g re at influ en ce s on a c h il d : hom e, 

sch ool, an d ch ur ch . To da y, th ere is a fo urt h gre at inf lue nce, an d yo u ladi es 

an d gen tle men con trol it.

If p ar en ts , te ac he rs , an d m in is te rs c on du cted th eir re sp on si bilitie s by follo wing 

th e ra ting s, ch ildr en wo uld ha ve a st ea dy die t of ice cr ea m , sch ool ho lid ay s, an d 

no Sun da y Sch ool. W hat ab out you r re sp ons ib ilitie s? Is th ere no roo m on. tel evi sion to teac h, to info rm , to up lift , to st re tc h, to en la rg e th e ca pa ci tie s of ou r 

ch ildre n? Is th ere no roo m fo r pr og ra m s de ep en ing th e ir unders ta ndin g of 

ch ildr en in oth er la nds? Is th ere no roo m fo r a ch ildre n’s ne ws show ex pl ai nin g 

so m et hi ng ab ou t th e world to them a t th eir lev el of under st an din g? Is th ere no 

room fo r re ad in g th e gre at li te ra tu re of th e pas t, te ac hin g th em th e g re at tr a d ition s of free do m ? Ther e a re some fine childre n’s show s, hut th ey are drow ne d 

ou t in th e m as sive d oses of ca rtoo ns , vio len ce, an d mor e vio len ce. Mus t th es e he 

you r tr adem ark s? Se ar ch your co nscien ce s an d see if you ca nn ot off er mor e to 

yo ur yo un g be ne ficiar ies who se fu tu re yo u gu ide so m an y hour s each an d ev ery 

da y.

W hat ab ou t ad u lt pro gr am in g an d ra ti ngs? You know , ne w sp ap er pu bl ishe rs 

ta ke po pu la ri ty ra ti n g s too . The an sw er s are p re tt y c le a r: it is al m os t al w ay s 

th e com ics, fo llo wed by the ad vi ce to th e lov elorn co lun ms. But , la di es a nd ge nt le ­

men. th e ne ws is st il l on th e fr o n t pa ge of al l ne w sp ap er s, th e edit ori al s are no t 

re pl ac ed by mor e com ics, th e new sp ap er s hav e not become on e long co lle ction 

of a dv ice to t he love lorn. Yet ne w sp ap er s do not n ee d a lic en se from th e Go vern-
REORGANIZATION PLANS 1 AND 2 OF 19 61 87

men t to be in busin ess—they do not us e public prop erty. B ut in tel evi sion—w her e 

yo ur resi> onsibilities as pub lic trus te es ar e so pla in, tlie mo me nt th at the ra tin gs 

indica te th at westerns ar e po pu lar there ar e new im ita tio ns of we ste rns on the 

air fa st er th an the old coaxial cab le could take u s fro m Hollyw ood to New York. 

Br oa dc as tin g cann ot continu e to live by the num bers. Rat in gs ought to be th e 

sla ve of the b roadcaste r, not his ma ste r. And you an d I both know7 t hat the ra tin g 

ser vic es themselv es w ould a gree.

Le t me ma ke clea r th at wha t I am talking ab ou t is balan ce. I believe th at 

the pub lic in te re st is ma de up o f many interests . Th ere ar e ma ny people in this 

gr ea t coun try and you mus t serve all of us. You will get no argu men t fro m me 

if you say that, give n a choice between a we ste rn an d a symphony, mo re people 

will watc h the we stern. I like westerns an d pr iv at e eyes, too—bu t a ste ad y diet 

for th e who le co un try is obviously no t in th e pub lic interest. We all know th at 

people wou ld more often pr ef er to be en terta in ed th an stim ul ated or inform ed. 

Bu t your obligations ar e not satisfied if you look only to po pu larit y as a te st 

of wha t to broadcast . You ar e no t only in show bu si ne ss ; you ar e free to commun ica te ide as as well as r elax ation. You mus t provid e a wi der rang e of choices, 

more div ersity, more altern atives . It is no t enough to ca ter to the Nation’s 

whims —y ou mu st also serv e the Nation’s needs.

And I would add this—th at if some of you pe rs ist in a relentless search for 

the high est ra ting and the lowrest common denominat or, you may very well lose 

yo ur aud ien ce. Because, to pa ra ph ra se a gr ea t Am erican who w7as rec ently my 

law pa rtne r, the peop le ar e wise, w7ise r th an some of the broa dc asters—and 

po lit ici an s—thi nk .

As you ma y have gathered , I would like to see televi sion imp roved. But how 

is th is to be broug ht ab out? By vo luntary actio n by the b ro ad ca ste rs the mselves? 

By d ire ct Govern me nt i nter ve ntion ? Or how ?

Le t me ad dr es s my self now to my rol e no t a s a vie wer bu t as Ch airm an of the 

FCC. I cou ld no t if I would, ch ar t fo r you th is afternoo n in de ta il all of th e 

ac tio ns I conte mp late. In ste ad , I wan t to ma ke clea r some of the fu nd am en tal 

pr inc iples w hic h g uid e me.

First , th e people own th e ai r. Th ey own it as much in prim e eve nin g tim e as 

they do a t 6 o ’clock Su nd ay m orn ing . Fo r eve ry ho ur th at th e people giv e you— 

you owe the m som ething. I intend to see th at yo ur de bt is paid with serv ice.

Second, I th in k it w ould be fooli sh an d was tefu l fo r us to conti nue an y wornou t wrang le over th e problem s of pay ola, rigged quiz shows, and othe r mi sta ke s 

of th e past. The re a re law s on th e books which we will enforce. But th er e is no 

chip on my sho uld er. We live toge ther in per ilous, un ce rta in tim es ; we face 

toge ther sta gg ering pr ob lem s; and we mu st no t waste muc h tim e now by reha sh ing th e cliche s of pa st con tro versy . To qu arrel over the pa st is to lose the 

fu tu re .

Th ird . I believ e in th e fre e en te rp rise system . I w an t to see b road ca sti ng improved an d I w an t you to do th e job. I am pro ud to cha mpion your cause. It is 

no t ra re fo r Am eri can busin essm en to serve a pub lic trus t. Yours is a spe cial 

tr ust beca use it is imposed by law .

F o u rt h : I will do all I can to help educ ati on al television. Th ere ar e still not 

eno ugh ed uc ationa l sta tio ns , and m aj or ce nters of th e country sti ll lack usable 

ed uc ationa l cha nnels. If th er e we re a lim ite d numb er of pr in tin g press es in 

th is country, you ma y be su re th at a fa ir pro portion of them wou ld be put to 

ed uc ationa l use. Edu ca tio na l television ha s an enormo us contr ibu tio n to make 

to the fu tu re, an d I intend to give it a ha nd alo ng the way. If th er e is no t a 

na tio nw ide e du ca tio na l tel evi sion sys tem in this cou ntry, it w ill no t be the fa ult 

of the FCC.

F if th : I am un al tera bl y oppo sed to governm ental censorship . Th ere will be 

no suppressio n of prog raming which does not mee t with bu reau cratic taste s. 

Censo rship s trik es a t th e tapr oo t o f o ur free society.

S ix th : I did not come to Washin gton to idly observe the sq ua nd ering of the 

pub lic’s air wa ves. Th e sq ua nd ering of ou r airw av es is no less im po rta nt th an 

th e lav ish waste of an y preciou s nat ura l reso urce. I int en d to take th e job of 

Ch air man of th e FCC very ser iou sly . I believe in the gr av ity of my own 

par ticu la r sec tor of th e New Fr on tie r. Th ere will be tim es pe rhap s when you 

will con sider th at I ta ke my self or my job too seriously. Fr an kly, I don’t ca re 

if you do. Fo r I am con vinced th at ei th er one take s this job ser iou sly —or one 

can be seriously taken.

Now, how w ill the se principles be ap plied ? Clearly , at the he ar t of the FCC’s 

au th or ity lies its powe r to licen se, to ren ew or fail to renew, or to revoke a
88 REORGANIZATION PLANS 1 AND 2 OF 1961

license. As you know, when your license comes up for renewal, your performan ce 

is compared with your promises. I understand th at many people feel that in the 

past licenses were often renewed pro forma. I say to you no w: renew al will not 

he pro forma in the futu re. There is nothing perm anent or sacred about, a 

broadcast license.

Bu t simply matchin g promises and performance is not enough. I inten d to do 

more. I inten d to find out whether the people care. I inten d to find out whether 

the community which each broadcaster serves believes he has been serving the 

public interest. When a renewal is set down for hearing, I intend—wherever 

possible—to hold a well-advertised public hearing, right in the community you 

have promised to serve. I want the people who own the a ir and the homes that 

television enters to tell you and the FCC wha t’s been going on. I want the 

people—if they ar e truly interested in the service you give them—to m ake notes, 

document cases, tell us the facts. For those few of you who really believe that 

the public in terest is merely what in terests the public—I hope th at these hearing s 

will arouse no little interest.

The FCC has a fine reserve of monitors—alm ost 180 millio n Americans gathered around 56 million sets. If you want those monitors to be your friend s at 

court—it ’s up to you.

Some of you may say,—“Yes, but I still do not know where the line is between 

a gran t of a renewal and the hearing you ju st spoke of.” My a nsw er i s : Why 

should you want to know how close you can come to the edge of the cliff? What 

the Commission a sks of you is to make a conscientious, good-faith effort to serv e 

the public inte rest. Every one of you serves a community in which the people 

would benefit by educational, religious, ins tructive or other public service programing. Every one of you serves an area which has local needs—as to local 

elections, controversial issues, local news, local talent. Make a serious, genuine 

effort to put on th at programing. When you do, you will not be playing brinkmanship with the public in terest.

What I've been saying applies to bro adc ast stations. Now a station break 

for the netw orks:

You know your importance in this grea t indu stry. Today, more tha n onehalf of all hours of television program ing comes from the netw orks; in prime 

time, this rises to more than three-fourth of the available hours.

You know th at the FCC has been studying network operatio ns for sometime. 

I intend to press this to a speedy conclusion with useful resu lts. I can tell you 

right now, however, that I am deeply concerned with concentration of power 

in the han ds of the networks. As a resu lt, too many local stations have foregone 

any efforts at local programing, with little use of live talent and local service. 

Too many local stations operate with one hand on the network switch and the 

other on a projector loaded with old movies. We wa nt the individ ual stations 

to be free to meet their legal responsibilities to serve their communities.

I join Governor Collins in his views so well expressed to the adver tise rs who 

use the public air. I urge th e n etworks to join him and under take a very special 

mission on behalf of this in du stry : you can tell your adv erti sers, “This is the 

high quality we are going to serve—ta ke i t or other people will. If you think you 

can find a better place to move automobiles, cigarettes, and soap—go ahead 

and try .”

Tell your sponsors to be less concerned with costs per thousand and more 

concerned with understanding per millions. And remind you r stockholders 

that an investm ent in broadcasting is buying a sha re in public responsibility.

The networks can st ar t the ind ust ry on the road to freedom from the dic tatorship of numbers.

But there is more to the problem tha n netw ork influences on stations or 

adv ertisers influences on networks. I know the problems netw orks face in trying 

to clear some of the ir best programs—the informational program s that exemplify 

public service. They are your finest hours—whe ther sustain ing or commercial, 

whethe r regu larly scheduled or special—the se are the signs th at broadcasting 

knows the way to leadership. They m ake the public’s t ru st in you a wise choice.

They should be seen. As you know, we are readying for use new forms by 

which broadcast stations will rep ort their prog raming to the Commission. You 

probably also know th at special attention will be paid in these reports to public 

service programing. I believe th at sta tions taking netw ork service should also 

be required to report the exten t of the local clearance of netw ork public service 

programing, and when they fail to clea r them, they should explain why. If it 

is to put on some outstand ing local program, this is one reason. But, if it is 

simply to carry some old movie, that is an entirely differen t matter. The Com-
REORGANIZATION PLANS 1 AND 2 OF 19 61 89

mission should consider such clearance reports carefully when making up its 

mind about the licensee’s overall programing.

We intend to move—and as you know, indeed the FCC was rapidly moving in 

other new areas before the new administration arrived in Washington. And 

I want to pay my public respects to my very able predecessor, Fred Ford, and 

my colleagues on the Commission who have welcomed me to the FCC with 

warmth and cooperation.

We have approved an experiment with pay TV, and in New York we are 

testing the potential of UHF broadcasting. Either or both of these may revolutionize television. Only a foolish prophet would venture to guess the direction they will take, and their effect. But we intend tha t they shall be explored 

fully—for they are part of broadcasting’s New Frontier.

Tlie questions surrounding pay TV are largely economic. The questions surrounding UHF are largely technological. We are going to give the infant pay

* TV a chance to prove whether it can offer a useful service; we are going to 

protect it from those who would strangle it in its crib.

As for UHF, I’m sure you know about our test in the canyons of New York 

City. We will take every possible positive step to break through the allocations 

barrier into UHF. We will put this sleeping giant to use and in the years 

» ahead we may have twice as many channels operating in cities where now there

are. only two or three. We may have a half dozen networks instead of three.

I have told you that I believe in the free enterprise system. I believe that 

most of television’s problems stem from lack of competition. This is the importance of UHF to me: with more channels on the air, we will be able to provide 

every community with enough stations to offer service to all parts of the public. 

Programs with a mass m arket appeal required by mass product advertisers certainly will still be available. But other stations will recognize the need to 

appeal to more limited markets and to special tastes. In this way, we can all 

have a much wider range of programs.

Television should thrive on this competition—and the country should benefit 

from alternative sources of service to the public. And—Governor Collins—I 

hope the NAB will benefit from many new members.

Another and perhaps the most important fron tier: television will rapidly join 

the parade into space. International television will be with us soon. No one 

knows how long it will be until a broadcast from a studio in New York will be 

viewed in India as well as in Indiana, will be seen in the Congo as it is seen in 

Chicago. But as surely as we are meeting here today, that day will come—and 

once again our world will shrink.

What will the people of other countries think of us when they see our western 

badmen and good men punching each other in the jaw in between the shooting? 

What will the Latin American or African child learn of America from our great 

communications industry? We cannot permit television in its present form to 

be our voice overseas.

There is your challenge to leadership. You must reexamine some fundamentals of your industry. You must open your minds and open your hearts to 

the limitless horizons of tomorrow.

I can suggest some words that should serve to guide you :

“Television and all who participate in it are jointly accountable to the Ameri-

* can public for respect for the special needs of children, for community responsibility, for the advancement of education and culture, for the acceptability of 

the program materials chosen, for decency and decorum in production, and for 

propriety in advertising. This responsibility cannot be discharged by any given 

group of programs, but can be discharged only through the highest standards

* of respect for the American home, applied to every moment of every program 

presented by television.”

“Program materials should enlarge the horizons of the viewer, provide him 

with wholesome entertainment, afford helpful stimulation, and remind him of 

the responsibilities which the citizen has toward his society.”

These words are not mine. They are yours. They are taken literally from 

your own television code. They reflect the leadership and aspirations of your 

own great industry. I urge you to respect them as I do. And I urge you to 

respect the intelligent and farsighted leadership of Governor LeRoy Collins, 

and to make this meeting a creative act. I urge you at this meeting and, 

afte r you leave, back home, at your station s and your networks, to strive ceaselessly to improve your product and to better serve your viewers, the American 

people.
90 REORGANIZATION PLANS 1 AND 2 OF 1961

I ho pe th a t we a t th e FCO will not allow ou rs elve s to bec om e so bog ged do wn 

in th e m ou nt ai n of p ap er s, he ar in gs , mem or an du m s, or de rs , an d th e da ily ro uti ne 

th a t we clo se ou r ey es to th e w id er view of th e pu blic in te re st . An d I ho pe th a t 

yo u bro ad ca st er s will not i>ermit yo ur se lv es to becom e so ab so rb ed in th e ch as e 

fo r ra tings, sales, an d pr of its th a t yo u los e th is w id er view. Now mor e th an ev er 

be fo re in bro ad ca st in g’s hi st or y th e tim es de m an d th e be st of all of us.

W e need im ag in at io n in pr og ra m ing, no t s te ril it y ; cr ea ti vit y, no t im it a ti o n ; 

ex pe rim en ta tion , no t confo rm it y; excelle nce, no t med io cr ity . Telev ision is filled 

w ith cr ea tive , im ag in at iv e peo ple. You m ust st ri ve to se t th em free .

Te lev isi on in it s yo un g lif e has ha d man y hours of gre at nes s—its “Victory a t 

Se a,” it s Arm y- M cC arthy he ar in gs , it s “P e te r P an ,” its “K ra ft T h eate r, ” it s 

“ See It Now ,” it s "P ro je ct 20,” th e wor ld se ries , it s po litica l co nv en tio ns an d 

ca mpa igns , "T he G re at D eb at es ”—an d it has had its en dl es s hou rs of m ed io cr ity 

an d its mom en ts of pu blic disg race . The re a re est im at es th a t to day th e av er ag e 

vi ew er sp en ds abou t 200 m in ut es da ily w ith television , w hile th e av er ag e re ad er 

sp en ds 38 m in ut es w ith m ag az in es an d 40 m in ute s w ith ne w sp ap er s. Te lev ision 

has grow n fa ste r th an a teen ag er , an d no w it is tim e to grow up.

W hat yo u ge ntlemen bro ad ca st th ro ugh th e pe op le’s a ir af fe cts th e pe op le’s 

ta st e, th eir kn ow led ge, th eir op inions, th eir unders ta ndin g of them se lv es an d of 

th eir w orld. An d th eir f utu re .

The po wer of in st an ta neous si ght an d so un d is w ithout pr ec ed en t in m ankin d's 

hi st or y. T hi s is an aw esom e po we r. I t has lim itle ss ca pab ilitie s fo r good—an d 

fo r evil. An d it carr ie s w ith it aw esom e re sp on sibi lities , re sp ons ib ilitie s which 

you an d I ca nn ot e sca pe.

In his st ir ri n g in au gura l ad dre ss our P re si dent sa id , “An d so, my fel low 

A m er ic an s: ask no t w hat you r co un try ca n do fo r yo u—ask w hat yo u ca n do 

fo r yo ur c oun tr y. ”

Lad ies an d ge ntlemen , as k no t w hat bro ad ca st in g ca n do fo r you. Ask w hat 

yo u ca n do fo r br oa dc as ting .

I ur ge yo u to put th e pe op le’s air w av es to th e se rv ice of th e peop le an d th e 

ca us e of free do m. You m ust he lp pre pare a gen er at io n fo r gre at de cis ions . You 

m us t he lp a g re at na tion fu lfi ll it s fu tu re .

Do th is, an d I ple dg e you ou r help.

Mr. H arris. Mr. Moss?

Mr. Moss. Mr. Minow, I want to congratulate you on the speech.

Mr. Minow. Thank you.

Mr. Moss. I thought it was one tha t required making.

I expressed myself in the matter in time with the hearings of the 

Oversight Committee and I am not talkin g about censorships any 

more than you.

I have done a lot of research on censorship. I find, with unanimity, 

it is an act of prior restraint on content or specific content.

I also have youngsters, and I am pleased to say, in view of the general caliber of programing, tha t they have gradually been weaned 

away from television.

I have been able to get them interested in more constructive things 

than the type of programing th at we have.

I have never gotten over griping about the removal of “Voice of 

Firestone,” by all three networks, as I recall.

It was a stepchild put around here and there. It had a good listening audience and was commercially sponsored and they were perfectly 

willing to pay for the prime time, but it did not produce the great 

mass of audience tha t the networks felt necessary.

So I would assume that i t is their feeling that unless you can draw 

the very largest audience good programing is not to be tolerated; 

tha t you have got to bring it down to the level where you get the most 

viewers, if their rating systems are any good, and I have had a very 

interesting experience in trying to determine whether they are good 

or bad after reading what I regarded as a very fine study ma tter under 

the sponsorship of this subcommittee.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 91

I am still a little hazy as to liow the American Statistical Society 

characterizes the ratings. 1 assume from their study that at the local 

level they are not too much of a rival for the nationally projected ra tings, but I think tha t it is inherent here in this license, in the public 

interest, to maybe just merge us a little, just slightly, and with the 

proper balance, I think that could be achieved.

But I am sometimes wondering whether the most important voice 

here is the licensee who has been licensed to operate in the public in terest, the network, or the commercial sponsor. I understand there are 

songs tha t cannot be sung without rewriting. There are products 

or words tha t cannot be mentioned in certain programs, because of 

sponsors.

This, I think, is censorship because it is specific restrain t on content. It goes on regularly by people who are not licensed, who are not 

answerable to the public. All they have to do is to create something 

to draw the most viewers.

Do you not think there is censorship there ?

Mr. Minow. 1 do. I think there has been a lot of throwing of the 

word “censorship” without a clear definition of what censorship 

actually is and what it is not.

I agree with that, sir. The last thing t ha t we would do, and again 

I know on this I can speak for the Commission, is censor programing.

This is not our purpose, and 1 am very grateful for your remarks.

Mr. Moss. Well, candidly, I would rath er that you censored programing than to have some of the programs that appeared before our 

committee. I think there might be a little more responsibility to the 

public, but I would not want either of you-----

Mr. Minow. Right. It is not the Government’s concern to do that. 

I think that this would be wrong.

Mr. Moss. And, you know, we talk a lot about television and deplorable as it is, it does not compare today to these electronic jukeboxes that we have in radio.

I have driven across this country quite a number of times, and I have 

gone all day where I could get nothing but the most raucus sounds on 

radio with a minimum, maybe one or two spot news plugs on the air.

No attempt, though, to render a public service, and I think radio, 

in its time, did an outstanding job of public service, but it has deteriorated alarmingly at this moment.

Mr. Minow. Well, it is a much tougher problem, Mr. Moss, because of the vast number of stations and it is very complicated to know 

what exactly the futu re of radio is in this country.

Mr. Moss. Well, 1 just wanted to take this time to congratulate 

you-----

Mr. Minow. Well, thank you.

Mr. Moss (continuing). On your excellent speech. I thin k some of 

the speeches of the president of the National Association of Broadcasters—who is the president ?

Mr. Minow. Governor Collins.

Mr. Moss. I think some of his speeches reflected a concern with the 

problems which should be concerning all broadcasters because I get 

complaints from those who would like to be viewers, and I have many 

that I make silently to myself.

Mr. Minow. Than k you, sir.
92 REORGANIZA TION PLANS 1 AND 2 OF 1961

Mr. H arris. Mr. Younger.

Mr. Younger. Thank you, Mr. Chairman.

Mr. Minow, last Friday in the Post, one of the columns had quite 

an article about the appointees of the President in the domestic field 

as being selected because of their toughness and in the foreign field 

tha t they were selected and cleared and screened because of their 

kindliness.

Were you aware of that at all when you were selected ?

Mr. Minow. No, I was not, sir.

Mr. Younger. Your speech is rathe r a tough speech.

It occurred to me th at probably you were screened for your appointment on that basis ?

Mr. Minow. Well, the thin g th at has surprised me about my speech 

is the great attention it received, because I said nothing in it tha t I 

had not said when I came down here to be confirmed by the Senate 

and what I have said since.

The only thing is I think I said it to tha t particu lar audience, is 

the reason tha t it got all the attention tha t it did.

Nor, I might add, have I said anything te rribly different than the 

Commission has said from time to time. I may have said i t in blunter 

terms.

Mr. Younger. Another circular, I understand, which has been 

handed around, was this one pertaining to the instructions of all men 

serving, as you serve, to mention the President early in the speech.

Are you familiar with that circular ?

Mr. Minow. I read about t ha t in the paper, Mr. Younger. I have 

never seen that memorandum.

Mr. Younger. Your mentioning of the President in the third 

paragraph was incidental ?

Mr. Minow. Yes, si r; it was.

Mr. Younger. You do not follow the instructions of tha t circular.

Mr. Minow. Tha t is right. I do not, sir.

Mr. Younger. When the Presiden t said he was going to make ap ­

pointments, he said that he was only going to appoint individuals 

who were skilled and train ed and experienced in the fields in which 

they were selected.

I think the report ought to show your experience in either practicin g before the Communications Commission or your experience 

in the communications field.

Mr. Minow. My experience in the communications field is limited, 

sir.

My experience has been that of a practicing lawyer in a very general practice, trying cases, doing corporate work.

I have represented people in educational television. I have represented talent in negotiations with stations and networks. I am a 

member or was a member of a large firm tha t had a great deal of 

work in the communications field but I, personally, would not regard 

myself as an expert or being terribly well-qualified for it.

Mr. Younger. Well, as a practicing attorney and if you were 

practicing before the Commission, would you prefer to have these 

changes made in the basic law of the Communications Act rather than 

throu gh the reorganization plan ?

Mr. Minow. Well, tha t is a hard question for me to answer, sir.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 93

I would certainly want to—I would hope, if I were practicing 

there—to expedite, to enable the Commission to carry on its work in 

a more expeditious and sound manner.

Now, whether it should be done by one particular route, through 

a reorganization plan or by changes in the statutes, these are matters 

of opinion, and 1 think reasonable people could differ about that.

Mr. Younger. Then you are not necessarily subscribing to the 

theory, as an attorney, tha t the more you confuse this issue the more 

business which is created for the attorney?

Mr. Minow. Well, I would hope the less confusion the better. 

I would hope tha t the bar would cooperate in trying to help us get 

quicker decisions for their clients, because this is in the public 

interest.

These slow dragging out of these—I was on the other side in so 

many of these problems. This slow dragging out does no one any 

good.

Mr. Y ounger. Well, I am not an attorney, but our very fine chairman is, and I was very much interested in the confusion in his 

mind, th at this reorganization plan would establish, as against having 

it in the basic law, and being more understandable. That is why I 

asked the question.

Mr. Minow. Well, I appreciate your concern on that, sir.

I would only say that, as I said before, I would supp ort this plan, 

but I am not saying there are not other ways to accomplish these 

results.

Mr. I ounger. I did not understand a while ago what you meant 

when you said the program was not to be your judgment but what 

the licensee decides his community wants.

Mr. Minow. Well, under our programing policy of last July, what 

we have asked the licensee to do is to circulate and canvass his community, talk to the church groups, talk to the parent-teachers, talk 

to the political groups, talk to everybody he can find, and say “W hat 

do you want on the air?” Wh at do you need here to serve the community’s interest?” and then come back and in his form, as the result 

of his inquiry, tell us what kind of programing he thinks will 

best serve the public interest.

This is the emphasis tha t-----

Mr. I ounger. All right. If he comes back and says that he has 

done tha t and tha t his programing is satisfactory, even though 

you or the Commission disagree with him, you will grant him his 

license ?

Mr. Minow. If he can demonstrate to us tha t he has made a conscientious, sincere effort to find out, and that is what it turn s out to 

be—we are not going to tell him tha t something else should be on 

the air ; no, sir.

Mr. Younger. It is going to be what the licensee decides?

Mr. Minow. Well, what is—on the basis of his community----- Mr. Younger. Survey?

Mr. Minow. That is righ t.

Mr. Younger. If he decides that, after his survey then he is in 

the clear?

73 53 1— 61----- 7
94 REORGA NIZA TION PLANS 1 AND 2 OP 1961

Mr. Minow. Well, provided tha t his survey—I mean, he can show 

us in documents that, “I talked to this fellow and I talked to tha t 

fellow and I have tried to do a job,” tha t is right.

Mr. Younger. Tha t is right. li e has made a survey.

Mr. Minow. Right.

Mr. Younger. He has decided on this program and it is not going 

to be what you think or what the Commission thinks?

Mr. Minow. No, sir.

That is why I want to have these renewals in the field also, because I want them in the place where the fellow broadcast. We do 

not know what kind of a job he did.

Local people in the community know. We do not know.

Mr. Younger. Do you believe tha t the networks should be brought 

under the Communications Act?

Mr. Minow. Well, this is a matter which I know has been before 

this committee, and the Commission has taken a position on it.

I really have not formed a final judgment on it yet, sir. I want to 

study that further.

Mr. Younger. Listening to Dean Landis the other day and to you 

in this explanation of the Reorganization Plan No. 2, I gathered the 

idea tha t the main objection to the present act is this featu re where 

the Commission must hear oral arguments and pass on exceptions in 

every adjudicatory case.

Mr. Minow. I think that probably goes to the h eart of i t; yes, sir.

Mr. Younger. Well, that is what I thought. And now, I was very 

much surprised this morning to hear you describe these various cases 

as some 50 tha t you said were in the last year, and I quo te:

I think this example today would be multiplied many times in view of the 

roughly 50 cases in which oral arguments were heard last year.

And you gave examples of four.

They had an average of 65 minutes.

Now, 50 cases would be roughtly 50 hours a year on an 8-hour day 

or less than 1 week.

Mr. Minow. Well, but this is my point-----

Mr. Younger. Wait a minute.

Mr. Minow. Excuse me.

Mr. Younger. You would have only 1 week actually of oral argument. It seems to me tha t this question of oral argument, if tha t is 

all it involves, is stretched way out beyond its just desserts.

Mr. Minow. Well, first I would only say: This is a small part of 

our work. I regard, for example, going back to this decision, we 

have got to make now on this space satellite communications 

system-----

Mr. Harris. Did you finish your statement ?

Air. Minow. No. Go ahead. Tha t is all right.

Do you want me to go ahead ?

Air. Harris. Yes. You finish your statement.

Mr. Minow. We are so tied up now. It is not just the time of the 

argument. Then we have got to get together and decide it. Then 

we have got to give instructions on opinions.

Then we have got to go over all of these opinions and very often— 

take tha t shrimp boat case. I was not here when it was decided but 

to tie up the time of seven Commissioners and their staffs and the
REORGA NIZATION PL AN S 1 AND 2 OF 1961 95

opinion and review staff, this probably cost the Government thousands of dollars when what was a t stake was a matter of, really, the 

most relatively unimportant concern.

What we want to do is be free to differentiate between the important and the unimportant.

Mr. Harris. Gentlemen, I have to interrupt the proceedings. We 

have a bill on the floor of the House. This committee has got to go 

over there to see about it.

Mr. Rogers, did you have any particu lar question you wanted to 

ask?

Mr. Rogers of Florida. Well, in view of the time I will defer my 

questions that I have.

Mr. Younger. 1 have a few more questions t hat I would like to ask.

Mr. H arris. I do not know how we are going to get to them right 

now.

This is off the record.

(Discussion off the record.)

Mr. Harris. We will now adjourn until 2 o’clock tomorrow, 

Wednesday, May 17.

(Whereupon, at 11:55 a.m., the committee was recessed, to reconvene at 2 p.m. Wednesday, May 17,1961.)

REORGANIZATION PLANS 1 AND 2 OF 1961

W EDN ESD A Y, M AY 17 , 19 61

Houseof Representatives,

Special Subcommittee on Regulatory

Agencies oftiie Committee on

I ntersfate and F oreign Commerce,

Washington, D.G.

The subcommittee met, pursuant to recess, at 2 p.m., in room 1334, 

New House Office Building, Hon. Oren Ha rris (chairman of the full 

committee) presiding.

Present: Oren H arris (chairman), Mr. Rogers of Texas, Mr. Moss, 

Mr. Rogers of Florida, Mr. Springer, and Mr. Younger.

Also present: Charles P. Howze, Jr., chief counsel of the subcommittee ; George AV. Perry, associate counsel of the subcommittee; Herman C. Beasley, subcommittee clerk; Rex Sparger, staff assistant of 

the subcommittee; Ku rt Borchardt, legal counsel, House Committee 

on Interstate and Foreign Commerce; Allan H. Perley, Legislative 

Counsel of the House of Representatives; Elm er W. Henderson, counsel to the Subcommittee on Executive and Legislative Reorganization.

The Chairman. The committee will come to order.

Mr. Minow, will you resume the witness stand ?

Yesterday, when the committee adjourned, by call of the House, 

Mr. Younger was interrogatin g Mr. Minow, now the Chairman of the 

Federal Communications Commission, and did not conclude his questions, and I think, Mr. Younger, you may proceed to take up where 

we left off yesterday.

STATEMENT OF HON. NEWTON N. MINOW, CHAIRMAN, FEDERAL 

COMMUNICATIONS COMMISSION—Resumed

Mr. Younger. Mr. Minow, we were discussing the amount of time 

consumed in the oral arguments.

Mr. Minow. Yes, Mr. Younger.

Mr. Younger. Of the 50 cases which you mentioned and if the 4 that 

are contained on page 7 of your paper are typical, then you would 

have an average of about 6 days, maybe a little longer, but it would 

be somewhere like a week’s work on oral argument.

As I recall, you said it also takes the time for the Board of Commissioners to then make up their mind.

If these are as unim portant as you would indicate, it certainly 

wouldn’t take the Commission very long to make up the ir minds and 

decide to get rid of them.

Is this not laying too much stress on this one situation which we 

wanted cured? It is too much like te aring out the roots of the tree to 

cure one branch.

97
98 REORGANIZATION PLANS 1 AND 2 OF 1961

Now tell me what your reaction to this would be?

Mr. Minow. Well, Mr. Younger, the time spent listening to the 

argument, I would say, is sort of like the top of the iceberg, the bigger 

part of the time when the Commission meets, then to decide it, and 

then we have to agree on an opinion and decision, and sometimes there 

are dissents and concurrences and despite the fact tha t these cases may 

be of relative unimportance in terms of our overall work, nevertheless 

they do take a good deal of time to decide, even though perhaps the 

amount of money involved in them or the amount of effort on the 

overall public interest is small, they nevertheless are very time consuming.

Now if we could have, let us say, a panel of three Commissioners 

deciding a certain category of cases, then we could decide twice as 

many.

Mr. Younger. My point is th is : Is there anything in the present law 

that says you have to have more than the majority of the Commission 

present to hear the arguments ?

Mr. Minow. Yes; it says the full Commission. The statu te says 

tha t these cases must be heard by the full Commission.

Mr. Younger. All right, if one of the Commissioners is sick you 

can’t hear any cases?

Mr. Minow. We go ahead then, but the statute does require the 

full Commission.

Mr. Younger. But if one of them is unavoidably detained somewhere, what happens?

Mr. Minow. We go ahead.

Mr. Younger. Otherwise, you go ahead ?

Mr. Minow. Yes, sir.

Mr. Younger. All right.

Mr. Minow. But, as a practice, we try to have all seven there.

Mr. Younger. Unless the litigan t objected, which I don’t think he 

would if you had four listening to the oral arguments, three of the 

Commissioners could be employed somewhere else doing something 

e’se, if the Chairman wanted them to. I go back each time to this 

provision in the present law which says the Chairman generally shall 

coordinate and organize the work of the Commission in such manner 

to promote prompt and efficient disposition of all m atters within the 

jurisdiction of the Commission. Tha t is a provision of the law to me 

that possibly the Chairman has not taken full advantage of in the 

past.

It seems to me tha t it would be much better if the Chairman would 

operate under this provision of the law and with the cooperation 

of the other members of the Commission and see if he couldn’t work 

out the problem rather than to go ahead now with the reorganization 

plan.

Mr. Minow. Well, I wish tha t were possible, sir. However, in 1951 

and 1952 Congress specifically directed tha t we not hear cases by 

panels.

Mr. Younger. I s it in the law ?

Mr. Minow. It is 5-D-l which says we cannot delegate in adju dicatory cases except as provided in section 409.

Mr. Younger. You wouldn’t be delegating any case, but if four 

Commissioners are there th at heard it and there are no others that are
REORGANIZATION PLANS 1 AND 2 OF 19 61 99

available, you would go ahead with the work and I don’t think anybody would object. That is one feature.

Mr. Minow. As I understand the present requirement of the law, 

Mr. Younger, we are under a duty, all of us, unless there is a good 

reason like illness or somebody being away, to hear all of the cases.

Mr. Younger. Well, I think it could be worked out by the Chairman 

within the framework of the law and within the framework of the 

Commission without injury to any of the litigants.

Mr. Minow. The Commission itself, prior to my arrival, had requested authority by law to hear cases in panels.

Mr. Younger. For instance, last year did the Commission gain on 

their workload or were they further behind at the end of the year 

on cases than they were at the beginning of the year ?

Mr. Minow. My understanding—and correct me i f I am wrong— 

was that we just held about even. We gained slightly.

Now on hearing cases we are pretty current now, sir.

Mr. Younger. Well, tha t is what I had in mind. You remember 

last year we had provisions, or rath er amendments, to the law in regard to penalty provisions and so forth.

Mr. Minow. Those have all been very helpful, sir.

Mr. Younger. And we found tha t even the provisions that were 

already in the law which provided tha t the Commission had a righ t 

to extend the license for a shorter period, for instance 6 months 

or a year, and where there was a licensee tha t the Commission felt 

wasn’t doing a good job, it was not incumbent upon the Commission 

to give them a 3-year extension of their license, but they did. They 

didn’t take advantage of the present law, and my contention is tha t 

if all of the provisions of the law were diligently observed and 

worked on, I thin k you could work out your assignment of cases 

and workload to a good advantage and if there is something needed, 

then we ought to do it by amendment and not go in, by a divisive 

way, to reach one or two angles of the operation.

Mr. Minow. I think there is a good deal to what you say. I agree 

with you, sir, b ut I think on the adjudicatory cases, as I understand 

the present provisions of the law, we could not split ours into panels 

or delegate them.

Mr. Younger. That could be amended very quickly.

Mr. Minow. Yes.

Mr. Younger. Th at particu lar provision of the law it could work 

its regular way and the Congress could work its will and you could 

operate under the law as an arm of the Congress rather than as an 

agent of the President or of the admin istration which I think you 

would operate under.

For instance, you talk about the Commission taking back from 

the Chairman rights tha t they once granted. Well, you and I are 

realistic enough to know tha t politically tha t could not be done.

Mr. Minow. I think not. In my day-to-day observation so far with 

the Commission, and I have been there a short time, the Commissioners 

themselves agree it isn’t going to work out.

Mr. Younger. Well, my observation around here is quite different 

from that. I thin k the ones t hat are in favor of this Reorganization 

Act say so because they are all up for appointment this year or next 

year, and as you get near the appointment time they will do whatever 

the President wants them to do.
100 REORGANIZATION PLANS 1 AND 2 OF 19 61

Mr. AIinow. I think not, sir. I thin k they are very independentminded.

Mr. Younger. I would be pretty willing to gamble on that.

That is all, Mr. Chairman.

Mr. Minow. If you saw our votes—and we had our meeting this 

morning—if you saw how we split on issues, Mr. Younger, I don’t 

think you would say that.

Mr. Younger. But you are not operating under the reorganization 

plan now, either.

Mr. Minow. We never have the same ones voting the same way. 

We are always on different sides.

The Chairman. Human nature is the same everywhere. We do 

the same thing here in Congress.

Thank you, Mr. Minow. You may step aside for a moment until 

Mr. Rogere from Texas arrives. He did have some questions of you.

Now I suppose the better way to approach this thing is to do it 

under the customary way that we have for doing things up here and 

that is by seniority.

Air. Hyde, I think you are senior, but not in years, but by length 

of service.

STATEM ENT OF ROSEL H. HYD E, COMMISSIONER, FEDERAL 

COMMUNICATIONS COMMISSION

Air. H yde. Thank you, sir.

Air. Chairman and members of the committee, the views I am about 

to express are personal views which I offer from the basis of more 

than 32 years’ experience beginning with the Federal Radio Commission and more recently, of course, with the Communications 

Commission.

I have been a member of the Federal Communications Commission 

since 1946. The views I express are in frank terms because I think 

that is the only way that is appropriate in proper respect to the 

committee.

Now they are also designed to be completely impersonal and do 

not reflect any strain in relations among Commissioners and particu ­

larly, none with the new Chairman.

The Federal Communications Commission which was created in 

1934 is the successor to the Federal Radio Commission which was 

created by Congress in 1927 to perform certain regulatory and licensing functions with respect to the use of radio, and especially to exercise broad policymaking authority which Congress delegated to it as 

an independent agency of Government. The considerations which 

persuaded Congress to establish a nonpartisan independent Commission are succinctly stated in the following excerpt from the report of 

the Senate Committee on Interstate Commerce, Alay 6, 1926, 69th 

Congress, 1st session, Report No. 772:

After the consideration of the fac ts given your committee at the hearing s the 

committee decided that the importance of radio and particularly the probable 

influence it will develop to be in the social, political, and economic life of the 

American people, and the many new and complex problem s its adm inistra tion 

presents, demand th at Congress establish an entirely independent body to take 

charge of th e regulation of radio com munication in all its forms.
REORGA NIZATION PLANS 1 AND 2 OF 19 61 101

The exercise of thi s power is fra ug ht with such great possibilities that it 

should not be entrusted to any one man nor to any administrative dep artm ent 

of the Government. This regulatory power should be as free from political influence or ar bi trar y control as possible.

These considerations are valid today. What has happened since 

1926 gives them even greater significance. Television is just one of 

the new services developed since 1926, and its potential is still not by 

any means fully appreciated. We are on the threshold of the development of space communications techniques which are expected to give 

worldwide dimensions to matters previously thought of in terms of 

national or continental interest. During the existence of the Federal 

Radio Commission and the Federal Communications Commission, 

there have been many Commissioners appointed with varied educational and experience qualifications who have contributed to the functioning of the agency. Some of them have been interested in one form 

of communications more than another. All of them, in my judgment, 

have contributed through exchange of viewpoints and development of 

particu lar interests to a balancing of relevant factors in the development of communications policy.

1 believe that this approach to regulation and to development of 

communications policy adopted by Congress in 1927 and reaffirmed by 

Congress in 1934, would be overruled if Reorganization Plan No. 2 of 

1961 is perm itted to become operative. I believe that implementation 

of the plan would in effect shift the regulation of interstate and 

foreign communications and the development of policy from an independent Commission-type of agency to a single administrator under 

the aegis of an executive-overseer, although still maintaining the form 

of an independent commission.

The stated purpose of plan No. 2 is to provide greater flexibility 

in the handling of business before the Commission, permitting its disposition at different levels so as to better to promote its efficient disposition. This is not a new concept. The Commission is now authorized by section 5(d) of the Communciations Act to delegate ma tters not involving hearings to an individual Commissioner, to Commissioners, or to bodies composed of one or more employees. Ex ­

tensive use has been made of this power to delegate. The great bulk of 

the Commission’s examining, regulating , and licensing functions are 

now performed under delegations from the Commission. During the 

month of April just past, more than 32,000 authorizations were issued 

under delegated power by the Safety and Special Radio Services 

Bureau. Other bureaus are likewise authorized to dispose of a tremendous load of casework not involving hearings.

The reorganization plan would add matters involving hearings to 

those which may be delegated for final disposition. At the same time, 

and I think very significantly, it places the delegations previously made 

by the Commission as such and those now proposed to be made within 

the control of the Chairman. In providing for the delegation of 

hearing work for final disposition, the plan also undertakes to abolish 

the legal right of oral argument before the Commission provided for 

in section 309(b) of the Communications Act.

Under Reorganization Plan No. 2, section 1, authority to delegate 

is treated in terms of a grant to the Commission. But this gran t must, 

of course, be considered in connection with section 2, which provides 

for the tran sfer from the Commission to the Chairman of the Com-
102 REORGANIZATION PLA NS 1 AND 2 OF 19 61

mission the fun ctio ns of the Comm ission with respec t to the ass ign ­

ment of Commission personnel, inc lud ing Com missioners, to perfo rm 

such fun ctions as may have been delega ted by th e Commission to Com ­

mission pers onnel, includ ing Com missioners, pu rsua nt to section 1 

of th is reorga niz ation plan.

Section 2 would authorize the Ch air ma n wi thou t con sultation with 

othe r members to choose and assign personnel as he might see fit to 

proce ss the ma tte rs which have been delega ted. Th e gr ea t bulk of 

the Commission’s wor kload ha vin g been placed un de r dele gations, 

the Ch airma n would be in pos itio n to con trol the disposition of the 

same. Th e only choice left to oth er Com missioners wou ld be to cancel 

the delegatio ns, an impossible choice because it would m ean ha ltin g ap ­

plication processing whic h, in tu rn , could have un fo rtu na te results, 

pa rti cu larly in th e safety services.

In so fa r as new dele gations are concerned, the ind ivi dual Com missioners could be placed in the p osition of e ith er accep ting the Cha irma n’s assignment of pers onnel, or refusin g to agree to delegation s. 

Th is means acquiesce in the wishes of the Ch air ma n, or vote to 

deprive the agency of any advanta ges th at might be in the proposed 

delegation.

I would respec tfully sug gest th at ra th er th an accept Re organiz ation Pl an No. 2, th at C ongress give con sideration to leg islation g ra nting the Comm ission gr ea ter flexibility in the ma nag em ent of its h ea ring work. I am certain this could be accomplished wi thou t bringing 

abo ut the profo und changes in the organiz ation and the relationship 

of the Comm ission to Congress inh ere nt in the reo rganiza tio n plan.

Tha t concludes my state ment.

I would make this ad dit ion al observatio n, th at I th ink th at a 

reo rganiza tio n plan rais es some serio us questions with resp ect to 

he aring rig hts . I th in k th at it seeks or undertakes to abolish the 

fun ction of oral argume nt an d which also would seem to make it 

possible for the Commission to assign, or the Ch air ma n to assign 

Com missioners and he ari ng exa miner s to pa rti cu lar assignm ents and 

rais es some serious legal questions.

My purpose in th is statem ent , however, was to direct attenti on to 

wh at I believe to be the main policy issue. I th ink th at the whole 

plan raises esse ntia lly a question of bro ad pol icy ; nam ely, whether 

or not you would have a single ad minist rator-t yp e of opera tion or 

wh eth er repo rti ng to the executive arm of Government wheth er you 

would have an ind ependent agency typ e of opera tio n with a Com ­

mission rep res entin g var iou s view points of ou r politi cal society and 

variou s qua lific ations based on experience th at can be b roug ht to bea r 

where you have a m ultihe ad agency.

Th e Chairman. Mr. Sp rin ge r?

Mr. Springer. Mr. Ilyd e, pag e 3, section 2 wou ld autho rize the 

Chairma n, wi thou t consultation with oth er mem bers, to choose and 

assign personnel as he might see fit to process the matter s w hich have 

been dele gated .

Now in th at , I tak e it you are talking abo ut the adjud ica tory 

ma tter.

Mr. H yde. I un de rst an d th is to apply to all work of the Com mission, Congressman Spring er.
REORGANIZATION PLANS 1 AND 2 OF 19 61 1 0 3

Actually, the Commission is now authorized to delegate anything 

on matters involving hearings and the only addition to the flexibility 

we now’ have is tha t under the new o rder of things hearing matters 

could be subjected to delegation.

However, under the new order of things, the assignment of personnel to these delegations would be given to the Chairman, and as 

I understand the plan, this assignment to the Chairman would also 

include the nonhearing matters which are already susceptible to 

delegation.

Mr. Springer. Then this plan does, in essence, have its great impact on the adjudicatory matter.

Mr. H yde. I think the impact is the same, if I may say so.

Mr. Springer. On an adjudicatory matter.

Mr. Hyde. The adjud icatory matter would be more important because usually, an adjud icatory matter reaches that status because it 

involves one, a policy perhaps which is a rule of the Commission 

which has been violated or perhaps there is an application not consistent with a rule or previous policy, or a conflict between claimants 

or perhaps it is in the natu re of an investigatory proceeding.

In this class of cases, you would have more of the policymaking 

function than you would have in the handling of a great bulk of 

routine applications which do not go to hearing.

Mr. Springer. Now you have raised the second point. In many of 

these adjudicatory matters which could lie delegated, you would, in 

effect, be formulating policy in the course of your official business.

Mr. H yde. You could be very well.

Mr. Springer. You could very well be forming policy.

Mr. H yde. Yes. A typical reason for assigning a case to hearing is 

tha t it raises a policy question; that it is not consistent with a rule th at 

defines policy or that the field is new and it needs to be explored in a 

hearing before any action is taken.

Mr. Springer. At this time, has there been any discussion by the 

Commission as to what would be delegated to the Chairman?

Mr. H yde. No, Mr. Springer, there has not.

Now the plan has only recently been announced and we have not 

undertaken development of any rules of procedure. There has been 

only a very brief discussion of this m atter and the Commissioners understand from the Chairman tha t the efforts would be made to set 

up rules that would not prevent Commissioners from making their 

contribution to the workings of the agency.

Mr. Springer. Mr. Hyde, I want to ask you this rather delicate 

question. I would like to get your opinion on it. You have been 

Chairman, haven’t you ?

Mr. H yde. I was Chairman from April of 1953 to April 1954 and Acting Chairman from April 1954 to October of the same year.

Mr. Springer. As I understand it generally, the Chairman has been 

subjected in the past—and I am not saying you—but has been subjected in the past to considerable pressures from people outside of the 

agency. Is that in essence true ?

Mr. Hyde. I would say that the Chairman, and I think my predecessors and successors will agree, find tha t if they permit themselves to 

become available to hear the arguments and urgings of people that 

their life would be full, indeed. Many communications are addressed
J 04 REORGANIZA TION PLA NS 1 AND 2 OF 196 1

to (he Ch air ma n and ma ny calls are m ade u pon him . A good deal of 

the work lias to do wi th no na djud icatory ma tte rs, some of those n ot in 

the ad jud icatory sta tus la te r move into th at area.

The Ch airma n, as t he c hie f execu tive of the agency, is n atur al ly the 

person to whom petiti ons, letters, com municatio ns wou ld be ad dres sed.

Mr. Springer. I tak e it y ou r infe rence wou ld be substantially th at 

if powers were delega ted to the Ch airm an th at are an tic ipated under 

this p lan , the pressur es upon the Cha irm an would become even greater .

Mr. H yde. I should th in k it would seem to am ount to even more 

than he has ha d single d out under the pro vision s of the law as it now 

stan ds.

Mr. Springer. Th ere has been one th in g as I hav e watch ed this in 

the pa st 11 years an d th at is there hav e been pre ssu res exert ed upon 

the Com missioners collectively an d indiv idually . I say th is in both 

admi nis tra tio ns, not ju st this one, bu t the pa st one an d the presen t 

one. Bu t it seems to me th at , in th e end, th e Commission its elf has 

ham mered o ut these matt ers of policy w here there was free discussion 

between them—where the decision was no t made by one per son —but 

where yo ur collective min ds were devoted to it. And even thou gh 

the re were serious differences in opinio n, an d the process was a lit tle 

slower, you general ly came up in the end with the corre ct solu tion.

Mr. H yde. I believe, Congressma n Sp rin ge r, th at th ere is a tre men ­

dous value in the approach to reg ulati on which pe rm its of an exchange of vie wp oin ts and whi ch gives to the form ula tio n of a decision or a policy whi ch is wh at we are ta lk in g abou t.

I hav e witnessed ma ny discussio ns, pr io r to the tim e I beca me a 

member, which were very s tim ula tin g, w hic h developed po ints of view 

not thou gh t of before the discussio n sta rte d.

One othe r matter th at I wou ld like to mentio n in this connection 

is t ha t it is muc h, much e asier to make a c ontributio n to policy if y ou 

pa rti cipa te in the beginn ing th an if y ou un de rta ke af te r the pre pa ra ­

tio n of a doc ument to ask fo r con sideration .

I f yo ur point of view is no t brou gh t before those who are writin g 

the opinion at the begin ning of the opera tion, you are lik ely to find 

things pr et ty well cry sta lliz ed an d a new approa ch p re tty well foreclosed by the work that, has alr eady been done.

Mr. Springer. I t ake it, the n, th at yo ur general opinion is th at the 

policy in these matter s th at cou ld possibly be deleg ated or th at you 

del ega te at the Commission prob ably could be done b etter colle ctively 

bv the Commission its elf th an w ith one person ma king th at decision.

Mr. I I yde. T believe so, Mr. Sp rin ge r, bu t I also recognize th at an 

agency of seven Com missioners mu st have lea dersh ip. I t mu st have 

a Ch airm an to ca rry o ut th e functio ns of the Ch air man in any o rganizat ion.

Now, the C hairm an mu st hav e au thor ity to dir ect the opera tions o f 

the agency and these he gets wi th the assistance of his associates.

Th ere is no rea l difficulty in the Commission in rec ogniz ing the 

need f or the Chairm an to have a sufficient executive au th or ity to dir ect 

the affairs o f the agen cy to see to wh at are sometimes ca lled th e hou sekeeping f unctio ns, the ad minist rativ e work the rein.

But the Commissioners ge t a certa in pa rti cipa tio n in this because 

the Ch air ma n works un de r del ega tion fro m t he othe r Commissioners 

and not from an orde r issued fro m outside th at au thor ity .
REO RGA NIZATION PLANS 1 AND 2 OF 1961 1 0 5

Mr. Springer. In substance then, it is your feeling that it would 

be better to give the agency greater flexibility to do it through legislation originatin g in this and the Senate committee rather than this 

plan or reorganization.

Mr. H yde. Yes, I would agree to that.

My recommendation is tha t the Congress give the agency, as such, 

greater authority and that operating independent agency of Government, under the watchful eye of the committee can exercise that 

discretion throu gh a Chairman who performs the function of C hairman in such an organization.

Mr. Springer. Now this one last question:

If this committee decides to take up the question of greater flexibility, would you believe it wise to stipulate the exact areas in which 

there ought to be flexibility rather than a general sentence or a pa ragrap h on flexibility?

Do you understand my question ?

Mr. H yde. I believe I do. I understand the question to be whether 

an effort should be made to define the particu lar areas in which the 

Commission would have discretion to make delegations.

As the law now stands we have auth ority to make delegations in 

matters not involving hearings.

I believe, sir, that you could very well authorize the Commission, 

as such, to make delegations of hearing matters. I should th ink that 

in giving the Commission such auth ority you would indicate the 

desire, if it is the desire of the Congress, tha t the Commission be very 

cautious about delegations of matters where policy is concerned.

Mr. Springer. Just this final statement.

The thing that disturbed me in this plan more than anything else 

is this broad area in general terms of giving flexibility without any 

strings on it whatsoever.

Now I don’t know whether t ha t sounds serious to the Commission 

but tha t is the pa rt tha t impresses me most. Pa rt of it may be due 

to the fact the speech the Chairman made gave me some ideas of 

what lie intended to do. That was what, in effect, has alarmed me 

plus the fact that you had the reorganization plan.

If the reorganization plan had pointed to specific areas and limited 

it to that alone, I might have been able to go along with the plan.

Mr. Hyde. I believe a delegation to the entire Commission would 

be helpful to the discharge of our work and I think tha t the responsibility being placed in the whole organization would be handled with 

utmost care.

Mr. Springer. Than k you, Mr. Chairman.

The Chairman. Mr. Moss?

Mr. Moss. Mr. Hyde, do you favor any change a t all in the Commission procedures at the present time ?

Mr. II yde. I certainly do. I would urge the Congress to give us 

more flexibility in handling our hearing work. I would urge th at you 

give tha t flexibility to the Commission.

Mr. Moss. To the Commission?

Mr. Hyde. Yes.

Mr. Moss. So t hat it could, whenever it agreed, assign or delegate 

some of its hearing responsibilities?

Mr. Hyde. I think it would be desirable.
IOC) REORGANIZATION PLANS 1 AND 2 OF 1961

Mr. Moss. On a case-by-case basis ?

Mr. Hyde. I think the Commission would find it necessary to make 

some classifications. There are certain types of hearing matters 

which ought not to require the time of the full quorum of the 

Commission.

Now there are other cases which raise basic policy questions which 

I think it would be very appropria te for the entire Commission to 

hear if they could possibly be present.

As the matter stands now, a litigan t has a righ t to oral argument 

before the Commission and this has been construed to mean a quorum 

of the full Commission.

Mr. Moss. Do you feel they should continue to have that right ?

Mr. Hyde. I do not think that this is essential in all cases. I think 

the Commission could be trusted to determine what classes of cases 

should be heard on this basis.

Mr. Moss. Then you are not concerned with this plan because it 

would take away the power.

Mr. H yde. 1 am concerned because of the blanket way in which it 

seems to take away that right.

Mr. Moss. How blanket is it ?

Mr. Hyde. It says in the latter par t of section 1:

And provided fur ther, Th at in accordance with the provisions of subsection 

(h) of thi s section, the func tions of the Commission with respect to the following exceptions and to decisions of hear ing examin ers and the function of h earing 

oral arguments on exceptions before entry of any final decision, order, or 

requiremen t as set forth in section (h ) of section 409 of the Communications 

Act of 1934, as amended, are hereby abolished.

Mr. Moss. Well now, you are to have this power given to the Commission to exercise its discretion in the matter of hearing. In other 

words, it would no longer be a right.

Mr. Hyde. I would recommend tha t the language, that new language making this delegation, be developed in such a way as to not 

leave any of the ambiguities which I believe are present in this pa rticular language.

Mr. Moss. Let’s forget the ambiguities. I am not asking about this 

plan because this plan will be heard before another committee. We 

are just trying to get your ideas of what you people want, what your 

attitude is on this general policy involved here.

You have indicated tha t you have had no reluctance at all in advocating tha t the right be taken away and leaving it to the discretion 

of the Commission.

Mr. Hyde. I did not mean to recommend or even suggest tha t the 

right of oral argument be abolished. I did mean to suggest and recommend, in fact, that the Commission be given the authority to delegate this work to panels or, in some cases, to boards within the organization. I am not suggesting anything else.

Mr. Moss. Do you feel it would be absolutely essential tha t you 

retain a right in every instance for oral argument ?

Mr. Hyde. I think, Congressman Moss, that it would be desirable for 

a litigant, in any case where a decision is to be rendered by persons 

who did not hear the evidence, to have the right or the opportunity 

for oral argument.

Mr. Moss. Opportunity for oral argument. Isn’t it contained in 

this plan ?
REO RGA NIZATION PLA NS 1 AND 2 OF 1961 107

Mr. Hyde. There is some doubt about it in my judgment.

Mr. Moss. Now, I thin k it has been very clearly stated both by the 

Chairman and by Mr. Landis tha t i t was certainly intended t hat they 

have th at opportunity, not the right, but an opportunity.

Mr. Hyde. The only language which I can find regarding oral a rgu ­

ment is this which 1 ju st read and it seems to say th at the function is 

abolished.

Mr. Moss. Well, I think you are wrong on tha t and very much so. 

I would be prepared to discuss that further with you before the committee, but I think you are wrong.

Mr. Hyde. I understood from what Mr. Landis said tha t that was 

the case.

» Mr. Moss. If this were made clear this would be an opportunity,

would you still have the same objection ?

Mr. H yde. This would give me less concern about a particular feature of the plan. But actually, this matter of oral argument is just

• one feature of a plan which, in the main, is designed, as I see it, to 

place the day-to-day direction of operation of our shop in one man 

rath er than in the entire Commission.

Mr. Moss. Do you favor increasing in any way the powers or expanding the duties of the Chairman ?

Air. Hyde. I believe the Chairman is in a very strong position 

under the provisions of the present act.

I do not see any necessity fo r extending them and I have no reason 

to recommend tha t they be curtailed.

Mr. Moss. You would be opposed to any expansion or any change 

in the duties of the Chairman undertaken by specific statute enacted 

by this committee?

Air. Hyde. I do not want to give an opinion on a change in the 

act which might be brought about through the regular legislative 

act.

Mr. AIoss. I asked you if in your considered judgment you would 

approve of any change. Do you feel any change is desirable?

Air. Hyde. 1 do not see any present need for a change but I certainly would not be averse to the Congress examining the present 

situation to see if some improvement could be made.

Air. AIoss. Well, it really wouldn’t do you any good, because that 

would be a prerogative of Congress.

Air. Hyde. No. I am really not volunteering this. I am trying 

- to answer your question.

Air. AIoss. I am trying to get you to answer my question, which is 

rath er specific, and it is if you agree to any change at this time. 

You certainly know what your action would be, any data you wish

* to submit to us that would be desirable, any change in the duties 

or functions of the Chairman of the Commission.

Mr. Hyde. Hav ing occupied the position of Chairman unde r the 

law substantially as it is now stated, I had no situation come to 

my mind that suggests to me the need for a change.

There have been many times when, momentarily, I felt a bit 

frustrated but on the basis of a somewhat lengthy experience and 

having in mind the value of the counsel and assistance of the other 

colleagues there, my overall judgment is that the present setup gives 

the Chairman adequate legal position to carry out the functions of 

the office.
1 0 8 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

I am not aware of any need for a change, but I do not want this 

statement of opinion to be understood as saying I would be opposed 

to any change tha t might he suggested. Perhaps someone else has 

an idea th at would be helpful to the functioning of the Commission.

I would certainly be willing to look upon any such proposal with 

an open mind.

Air. Moss. Well, in another way, do you rega rd the present pattern 

as ideal?

Mr. Hyde. Now that you ask me whether it is ideal, I will mention the fact tha t the Chairman does serve at the pleasure of the 

Chief Executive. His term is undetermined in tha t sense. It m ight 

further the independence of the agency if it were either a fixed term 

or if it were by election by the Board, but these are matters I did 

not expect to testify on and it does suggest, I think, tha t there may 

be reason to give further thought to the provisions of the present 

act with respect to the chairmanship.

Mr. Moss. I)o you think there should be any change in administrative responsibility of the Chairman?

Mr. Hyde. No.

Mr. Moss. Do you feel the Commission is able to efficiently and effectively handle administrative problems in its own shop ?

Mr. Hyde. I believe we are. As a matter of fact, the Commission 

has been its own delegation, giving the Chairman very extensive administrative authority in this area.

Mr. Moss. The only change, then, that you can call to mind at the 

moment th at you are advocating would be the granting to the Commission of more flexibility in delegating oral argument ?

Mr. Hyde. That is the one thing proposed in the reorganization 

order which I would suggest might appropriately be taken up in legislation for the purpose of expediting our work.

The Commission has made a number of legislative recommendations which, of course, we are not talking about at this time.

Mr. Moss. Would you delegate to others on the staff or to panels 

of Commissioners the matter of oral argument or leave tha t to the 

Commission for determination ?

Air. Hyde. I believe it would be desirable for Congress to give the 

Commission authority to delegate some classes of hearing work to 

panels and in some instances to panels made up from the staff of the 

Commission.

Air. AIoss. Do you feel tha t the business of the Commission is expeditiously handled under the present procedures?

Air. Hyde. I believe that there are a number of things tha t could 

be done to the present act which would permit us to improve our work 

in terms of expediting.

We have made a number of recommendations to Congress. One 

is directed to getting more latitude in the use of our review staff.

We asked for this in the previous Congress and we are currently 

asking for this authority now. There are other suggestions which we 

are making looking toward improvement in our processes.

Air. AIoss. Tha t is all the questions I have, Air. Chairman.

The Chairman. Air. Younger?

Air. Younger. No questions.

I do want to say I agree with your statement.
REORGA NIZATION PLA NS 1 AND 2 OF 1961 1 0 9

The Chairman. Mr. Rogers?

Mr. Rogers of Florida. Ju st a question or two, Mr. Chairman.

As I understand it now, Mr. Hyde, you feel tha t the Commission 

is making a proper and extensive use of the delegation of powers 

in those matters tha t do not require a hearing.

Mr. Hyde. Mr. Congressman, I think we are, in those matters.

Now there are one o r two areas where we can make furthe r delegations within our present authority. One of those is the delegation 

of action on interlocutory matters. The Commission has been handling these, and as the Chairman mentioned in the previous hearing 

here, the volume was substantial. These could be delegated to the 

hearing examiners, and as a matter of fact the rulemaking for that 

purpose is now in progress.

Mr. Rogers of Florida. How does the delegation of power presently used actually come about in work? In other words, I would 

like to know whether you delegate the authority to the Chairman, 

select personnel, or how is it handled?

Mr. Hyde. We have a functional organization—we have a Broadcast Bureau which processes and handles matters involving the broadcast services; a bureau called Safety and Special Radio Services which 

handles and processes applications in the miscellaneous group of services which comes under the scope of their autho rity ; we have a Common Carrier Bureau.

In each instance, the Bureau chief is authorized to handle a multitude of routine and near routine matters.

For instance, in the Broadcast Bureau an application for assignment of license or transfer of control of a corporation may be handled 

within the Bureau without reference to the Commission, where it involves, let us say, a change in the form of the ownership.

An application for authority to put in new equipment not involving new service areas is handled in the Bureau without reference to 

the Commission.

In the Common Carrier Bureau where they handled 2,500 applications in a year for various common carrier services, they would be 

processed and acted upon by the Bureau chief.

In Safety and Special Radio Services, the volume is tremendous. 

They issue 1,600 licenses a day, a workday, and 320,000 in a year and 

these are issued under authority delegated to that Bureau by the 

Commission.

Now, all the members of the Commission feel a sense of participation in this activity because we had a hand in assigning and delegating the work first, and appointing and assigning the personnel 

tha t handled it and the men of the Bureau feel, I am sure, a responsibility to each member of the Commission.

I would like to mention th at the total amount of hearing work from 

this one Bureau which issued more than 300.000 licenses last year 

was 27 cases. The great p art of the policymaking in this area is done 

in rulemaking proceedings.

Once the rules are out and the conditions of licensing, the actual 

issuance of the permit, let us say, in what we call citizens’ radio, amateur or business, can readily be handled by the Bureau chief.

Mr. Rogers of Florida. Now, may I ask you do you have reference 

to panels of Commissioners or a separate Commissioner ?

73531— 61 ------8
110 REORGANIZA TION PLAN S 1 AND 2 OF 1961

Mr. H yde. We do make some special assignments. We have a telephone and telegraph committee. They have certain authority with 

respect to changes or actions on requests for changes in plan above a 

certain amount and a year ago last fall the telephone committee did 

conduct negotiations looking toward a reduction in rates.

Certain Commissioners have special duties.

Now Commissioner Bartley is what we call our defense commissioner. He succeeded Commissioner Lee in this office.

Commissioner Craven, who is an electrical engineer by experience 

and training, has had special assignments in allocation matters, and, 

more recently, in space communication matters.

Mr. Rogers of Florida. Are these delegations made by the full Commission ?

Mr. Hyde. They are.

Mr. Rogers of Florida. Is there any rotation of these delegations?

Mr. Hyde. Yes, sir. They are not organized on an automatic rotation but they are changed.

Mr. Rogers of Florida. How frequently ?

Mr. Hyde. The telephone and telegraph committees have worked 

pretty much on a seniority basis in recent years.

We did make a change in assignments incident to the change in the 

administration when we asked Commissioner Bartley to be Defense 

Commissioner. It requires a certain liaison with the executive arm of 

the department and Commissioner Bartley became the Defense Commissioner and Commissioner Lee accepted the duties as assistant or 

alternate.

I am reminded by Commissioner Lee that when new Commissioners 

come into our organization we have looked over the committee assignments and undertaken to make a division of work t hat would be both 

appropriate and which would also make effective use of the special 

talents of the Commissioners available.

Mr. R ogers of Florida. Does the new Commissioner pa rticipate in 

the assignment?

Mr. Hyde. Yes, he does. The new Commissioner gets certain specific honors when he comes to our place. We might ask him to give 

his views on the most difficult problems tha t come in first.

Mr. Rogers of Florida. Then as I see it, you feel the entire Commission should be the one to make delegation of powers and you do 

believe people should have the righ t of an oral argument as a matter 

of righ t a t least to one Commissioner or a panel of Commisisoners to 

be designated by the Commission ?

Mr. II yde. Yes, I do.

Now if I might take just another moment of time. I think the right 

to file execeptions and the right for oral argument is particularly important when a panel or some individual who did not find it possible 

to be present and hear all the testimony is called upon to make a 

judgment.

Mr. Rogers of Florida. One last question. I wonder if you could 

briefly tell me if you feel the Commission has any responsibility as 

to program on television ?

Mr. Hyde. Section 326 of the act provides that the Commission shall 

make no rule or regulation which would interfere with the right of 

free speech.
REORGA NIZATION PLAN S 1 AND 2 OF 1961 1 1 1

Mr. Rogers of Florida. I am not asking you on censorship. That 

is the responsibility of the stations rendering a public service.

Do you feel any responsibility in your mission along that line, and if 

so, to what degree ?

Mr. Hyde. We might feel the Commission has some responsibility 

in seeing to it tha t an applicant makes an earnest effort in this area.

Now this is a difficult area to deal with because I agree with the 

statement in principle tha t the Commission issued in 1949 that the 

param ount rig ht tha t we are concerned with here is the right of the 

public for information, the right of the public to choose what they 

wish. In the somewhat well known opinion on editorialization by 

broadcast licensees which was issued in 1949, the Commission held 

tha t a param ount factor in determining whether an operation is in 

the public interest is whether or not the licensee of a station affords 

the public an oppo rtunity to hear all sides of the public issue.

I personally think tha t it is paramount in the public interest tha t 

a licensee have the same freedom of action in this area of expression 

and in this area where we are dealing with creative art.

I do not see how the Commission, for instance, could set program 

standards without at the same time ap plying restrictions. But this is 

a matter of program covering a vast area.

I think, for instance, tha t the Commission must see to it tha t we 

do not tolerate deceptions or fraudule nt advertising. There we have 

expressions of public policy in laws against fraud. The payola scandals are something, of course, that should not be tolerated.

We certainly should see to it and, of course, Congress has enacted 

legislation to see to it that we do not have a situation where programs 

are accepted and broadcast on the basis of payola r ath er than on their 

merit.

Mr. Springer. Would the gentleman yield ?

Mr. Rogers of Florida. If I may just ask one more question then 

I will yield.

What public interest responsibility does the Commission have? I 

wasn’t quite clear.

Mr. Hyde. I think the Commission should see to it that there are 

not restraints which operate against the free competition in this field 

where this is a matter of investigation righ t now in our progress.

I think we should see to it in our licensing practice that we prevent 

monopoly.

Mr. Rogers of Florida. I was thinking more of the program line or 

program content if there is any responsibility.

Mr. Hyde. On that, I thin k we should use greater care in passing 

upon the qualifications of applicants to make sure we have responsible 

licensees who at least will know what is being broadcast over their 

stations.

Mr. Rogers of Florida. Do you require any statement when they 

get a license as to what they will do as far as public interest and 

community interest is concerned ?

Mr. H yde. Applicants are required to submit a statement, a rather 

comprehensive one.

The agency, right now, is undertaking revisions in the application 

form in which they submit this statement of program fare and a 

recent statement of policy by the Commission contemplates requiring 

an application to survey his community and indicate in his applica-
112 REORGANIZATION PLAN S 1 AND 2 OF 196 1

tion what lie is going to do to meet certain needs of t hat community. 

Mr. Rogers of Florida. You feel tha t is a good policy? Are you

in agreement with that ?

Mr. Hyde. No, I dissented to tha t policy statement.

I would bo more inclined to require an applicant to show that he is 

going to provide in his organization facility, someone to examine materials offered to him. I would like to have him maintain some kind of 

a research or investigative service in his station which would seek out 

talent and make program judgments.

I would, if I had my way, require of an applicant that he have some 

well reasoned, thought out approach to program service, hut would not 

undertake to tell him in advance what it would be and I would not 

want to exactly promise from him such specificity th at he would have 

no latitude for change, no latitude to meet competition, no latitude to 

meet changing conditions during the content.

Mr. Rogers of Florida. What I was wondering is what guidelines 

do you use as far as when you say you would have him determine what 

type of programs were to be used in a community ? Is it what his particular community desires or what the broadcaster himself desires ?

Tha t is what I am wondering about.

Mr. H yde. The Commission is struggling with this problem at the 

moment. The one area in which we have found it possible to set out 

guidelines has to do with fairness in a discussion of public issues. 

This, I submit, is the most vital field of all in broadcasting and in this 

there is the very well reasoned statement of policy to which I do subscribe.

Mr. R ogers of Florida. But do you feel it is necessary for the Commission to check back with licensees on the statements they made upon 

the issuance of their license so f ar as presenting community programs 

and public interest programs ?

Mr. Hyde. I think tha t technique has certain risks.

Mr. Rogers of Florida. How would you do it?

Mr. Hyde. Well, there are a number of things involved in this matter of checking performance against promise.

If the promise you exact from him is one that he will tend to his 

business dilige ntly ; that he will maintain a program depth adequate to 

do a decent job; tha t he will check all his commercial copy as to its 

propriety and as to its compliance with law, those are promises that 

you can certainly expect him to live up to and for which you can take 

him to task if he fails.

However, if you exact from him in considering his application of 

promise in great detail as to a particu lar program content, you could, 

through that process, very well impose some prior restraints on what 

he is going to broadcast.

Fo r instance, if you set up a condition under which he feels obliged 

to promise certain types of programing as a condition to getting his 

license with the knowledge t hat when he fails he will be taken to task 

for failure to comply with his promise, then you have gotten over into 

the area of censorship.

Mr. R ogers of Florida. Wha t I was thinking about is what do you 

do now to presently require along those lines?

Mr. H yde. What we require now is essentially a breakdown, a percentage breakdown in classifications of program material and it is
REORGANIZATION PLANS 1 AND 2 OF 19 61 1 1 3

mainly helpful in determining whether or not the applicant is making some effort, some conscientious effort in the operation of the station.

Astually, our interest is not whether or not he broadcasts a certain 

selection of songs or a certain dramatic skit. It is just a way of checking his overall performance.

If, for instance, we have an application form which indicated that 

the commercial manager was running the station and tha t the main 

burden of his program content was commercial, we would institute 

a further inquiry asking him how does this serve the public interest.

Air. Springer. Would the gentleman yield ?

Mr. Rogers of Florida. Yes.

Mr. Springer. I would like to be specific and ask the gentleman to 

answer the question. What do you have to say about t his :

Particular areas of interest and type of program service may, of course, differ 

from community to community from time to time. However, the Commission 

does expect the broadcast licensees to take the necessary steps to inform himself of the needs in the area.

There are then listed 14 different types of programing. There is 

the answer and I think within tha t the Commission has its power, 

but the thin g which the Chairman covered in his speech before the 

NAB was far more severe than that. lie was going into the content 

of the program itself.

Mr. Rogers of Florida. I didn’t get tha t from the statement.

Mr. Moss. I was interested in that.

The Chairman. Gentlemen, I know’ it is important to discuss programing and the Commissioners’ views on programing and going into 

these various fields, but we have five more members of the Commission here. We only have this afternoon to get to them and their 

view’s on the reorganization plan and I would like to suggest that we 

try to see how these other members feel about it, if we can.

We are not going to have any further opportunity if we don’t do 

it this afternoon. The Government Operations Committee starts hearings in the morning and this will be th e last chance w’e have.

Mr. Rogers of Florida. I have no more questions.

The Chairman. We w ill be glad to have a full-scale session on these 

other matters where we can have all the time we want to discuss it.

Mr. Moss. I just have a couple of questions, Mr. Chairman.

When was the program investigation launched?

Mr. Hyde. December of 1959. In December of 1959 the policy 

statement which was issued afte r the hearings, was issued July 29 

of last year.

Air. Moss. And that was launched before Mr. Minow became the 

Chairman of the Commission ?

Mr. Hyde. It was.

Mr. Moss. And, therefore, the Commission's interest was not suddenly sparked as a result of his address lie fore the National Association of Broadcasters ?

Mr. II yde. The Commission, since the days of the Federal Commission, has been requiring a statement of service from applicants 

and has given consideration to overall service.

Mr. Moss. And inherent in that certainly must be some concern with 

the type of programing proposed or actually undertaken by the 

licensee.
114 REO RGANIZA TION PLAN S 1 AND 2 OF 19 61

Mr. Hyde. Well, this is an area where viewpoints of Commissioners 

have been at considerable distance apart at times. But over the whole 

period, there has been an effort in determining whether the g rant will 

serve the public interest to take what is called an overall look at 

their service.

Mr. Moss. And you would have the responsibility of maintaining 

sort of an oversight function on the licensees, wouldn’t you ?

Mr. Hyde. Well, some Commissioners would not agree th at it is an 

oversight responsibility.

I have some serious doubts myself about the 1 year.

Mr. Moss. Ju st take his word and if he didn’t perform as he indicated at all, just completely abandoned all his policy commitments to 

the Commission, you would have no further responsibility. Is tha t 

your conclusion ?

Mr. Hyde. Oh, no. The usual case, Congressman Moss, where the 

Commission has refused to review a license has been one where a 

station was converted to what was obviously the selfish interest of 

the applicant.

This was the Bri nkle y case.

Mr. Moss. Well, you must have then some interest in programing.

Mr. Hyde. Interest in programing shows up more particula rly in 

the comparative cases and they certainly do weight one proposal 

against another and make-----

Mr. Moss. Would you not require fairness in the discussions?

Mr. Hyde. Tha t is right. Fairness is a program consideration.

Mr. Moss. We are dealing here with a license that is not quite as 

broad as that of the press because no one can require fairness in the 

discussion of public issues in either the editorials or the news columns 

of the daily paper.

Mr. H yde. The fairness doctrine is a contribution of the Commission. It has actually been endorsed by Congress since it was developed by the Commission.

Mr. Moss. And you had the requirement tha t if you get into political discussions there be an equal time for-----

Mr. Hyde. The political time area, section 315, is one of those 

areas where Congress has pretty well defined the policy. We have 

administered it to the letter, I believe.

Mr. Moss. We could not by any act of this Congress require that 

of the press, could we ?

Mr. Hyde. The treatment of political questions is certainly different 

in radio from what it is in the press.

Mr. Moss. That is all I have. Thank you.

The Chairman. You may be excused.

STATEM ENT OF ROB ERT T. BAR TLEY, COMMISSIONER, 

FEDERA L COMMUNICATIONS COMMISSION

The Chairman. Commissioner Bartley ?

I would like to make this suggestion, th at unless there are different 

opinions, we let each one of the Commissioners proceed now to 

present their views before we engage in any further questions.

Mr. Bartley. Thank you, Mr. Chairman.
REORGANIZATION PLANS 1 AND 2 OF 19 61 115

The Chairman. Mr. Bartley, you may proceed.

Mr. Bartley. I can make mine very brief, Mr. Chairman, as fa r as 

the statement is concerned.

It would be perfectly agreeable to me, if you wish, to—I believe 

each of you has before you a copy of my letter to Senator McClellan 

in response to his request for my comments on the bill. And tha t 

would be my statement here.

The Chairman. Yes, I have it.

Air. Bartley. I can either read it into the record or it can go into 

the record, whichever you wish.

The Chairman. Whichever way you would like to present your 

views on it, will be all right.

Mr. Bartley. Well, if you are like I am, I would rather read it. 

It is before you. I would rather read it and then I will open myself 

up to questions.

I will point out tha t attached to this, for the information of the 

committee, is a legal opinion by my legal assistant. I might add tha t 

he is no kin to John Cross, our Commissioner.

That need not go into the record, I would not think, but you may 

have it.

The Chairman. All right.

Mr. Bartley. And if you have any-----

The Chairman. Let the statement be included in the record without the opinion referred to, and then you may proceed however you 

choose to present it.

Mr. Bartley. This is all I have then, Air. Chairman, and that is 

just the statement. And I am here for questions.

The Chairman. Well, I think we will save time by your explaining your statement or reading it or letting us know how you feel 

about it.

Air. Bartley. Very well. I will read it.

The Chairman. This is off the record.

(Discussion off the record.)

Mr. Bartley. Very well, Air. Chairman.

I think that the plan should be rejected.

The Constitution places the regulation of commerce in the Congress. Section 2 of the proposed plan could be employed, I believe, 

to shift the regulation of interstate and foreign communications 

from an independent commission to the executive branch of our 

Government. Whether this power would be exercised is not the 

question.

The proposed plan raises in my mind the basic question whether 

we are to have communications regulated by a bipartisan independent 

commission or by an administrator. I have grave doubt that the bipartisan nature of the Commission can be effectively preserved by the 

mere opportunity for a m ajority less one to require review of a delegated action. I perceive the possibility would be created for reducing 

the function of the six other Commissioners to almost that of scribes.

This is not to say th at the Communications /Vet of 1934, as amended, 

does not need the attention of Congress. Required procedures are 

such th at much of our time is spent in spinning our wheels in “undue 

process.” Some of the objectives of the plan are most desirable. I
116 REORGANIZATION PLANS 1 AND 2 OF 1961

believe, however, the objectives should he accomplished through direct 

legislative amendment.

Now I might say th at the conclusions that I have reached here, with 

respect to what have been termed by some as the creation of a oneman Commission or a shifting of that responsibility from the Congress 

to the executive branch, is actually based on another section of the 

Communications Act. And that is the section which provides tha t 

the President shall designate the Chairman.

For years I have felt tha t the chairmanship of the Commission 

should be placed within the Commission by vote of the Commission.

1 am certain that many of the delegations that we could make have 

not been made because the President does name the Chairman.

Now I am entirely delighted at the moment with the way it has 

worked out. I was entirely delighted with the previous appointment, 

but there have been some times when I have been very, very unhappy.

I think th at one of the main reasons that the Chairman has not been 

delegated all the authority or many of the authorities tha t the Commission could delegate is for tha t very reason. My position on this 

plan might well have been different if it had included a provision, 

transferring the authority to name the Chairman from the Pre sident back to the Commission.

The Chairman. Then you would prefer your entire statement in the 

record for the information of the committee ?

Mr. Bartley. Tha t is correct.

(The full text of the letter above referred to is as follows:)

Federal. Communications Commission,

Washington, D.C., May 4, 1961.

Hon. J ohn L. McClellan,

Chairman, Committee on Government Operations,

U.S. Senate, Washington, D.C.

Dear Mr. Chairman : Responsive to your letter of May 3 w ith respe ct to Reorga niza tion Plan No. 2 tran smitte d by the President on April 27, 1961, i t is my 

opinion th at the plan should he rejected.

The Constitution places the regulation of commerce in the Congress. Section

2 of the proposed plan could be employed, I believe, to shift the regulation of 

interst ate and foreign communications from an independent commission to the 

executive branch of our Government. Whether this power would be exercised 

is not the question.

The proposed plan rais es in my mind the basic question w heth er we are to have 

communications regu lated by a bip art isa n independent commission or by an administrator. I have grave doubt th at the bipartisan nature of the Commission 

can be effectively preserved by the mere opportunity for a majority less one to 

require review of a delegated action. I perceive the possibility wouid be crea ted 

for reducing the function of the six other Commissioners to almo st that of 

scribes.

This is not to say th at the Communications Act of 1934, as amended, does not 

need the atte ntion of Congress. Required procedures are such that much of 

our time is spent in spinning our wheels in “undue process.” Some of the objectives of the plan are most desirable. I believe, however, the objectives should 

be accomplished through direct legislative amendment.

Sincerely yours,

Robert T. Bartley, Comwisstoner.

The Chairman. Well, under the suggestion that you have just 

stated, then, if that is all you care to state at this time, we will let 

you step aside and bear Mr. Lee.
REORGA NIZATION PLANS 1 AND 2 OF 1961 117

STA TEMENT OF ROBERT E. LEE, COMMISSIONER, FE DE RA L 

COMMUNICATIONS COMMISSION

Mr. Harris. You may proceed, Mr. Lee.

Mr. Lee. Mr. Chairman, I would like to, in the interest of saving 

time, associate myself with the statements of Commissioner Hyde and 

Commissioner Bartley and also with the statement of Commissioner 

Ford yet to come.

Commissioner F ord’s statement is very comprehensive and he has 

performed a great deal of legal research, and I thin k you would find 

it of interest.

I would therefore like to incorporate a very brief statement and 

I would summarize it fo r you, if I may, as to my position.

The Chairman. Yes; you may do that.

Mr. Lee. I am opposed to Reorganization Plan No. 2 of 1961. 

Although I agree with some of the fundamental objectives of the 

plan, I feel tha t these objectives can be obtained better through 

amendment of the Communications A ct following legislative hearings.

As indicated by Chairm an H arris, I am afraid t hat section 1 of the 

plan now before you would leave us in a state of doubt as to our hearing procedures. My prim ary concern with the plan arises out of 

section 2.

This, it seems to me, strikes at the basic philosophy underlying the 

structure of the Communications Act. As you know, this section 

withdraws from the Commission the function of assigning personnel 

and makes an absolute gra nt of this function to the Chairman.

There are no exceptions to this grant of authority. The Chairman’s word would be absolute to the point that he would have authority to assign all Commission personnel, including Commissioners and 

the personal staffs of the several Commissioners.

In my study of the proposal before you I have reviewed the hearings on the Reorganization Plan No. 11 of 1950, which bears some 

similarity to the plan now before the Congress. And, in reviewing 

this record, I was particularly impressed with the testimony of former 

Senator Edwin C. Johnson, of Colorado, in which he quotes former 

Senator Champ Clark, of Missouri, late r a great jurist, and also 

Senator Barkley, subsequently Vice President of the United States.

In effect, they make a great case for maintaining the independence 

of the regulatory agencies as an arm of the Congress ra ther than the 

executive branch.

Now, I w ould like to make it quite clear and digress for a moment 

to say tha t I have absolutely no concern with the current Chairman. 

He has been a real delight and I do not think tha t he would ever, in 

any way, abuse any delegated power, whether tha t powrer was dele­ gated to him by the Commission or by the law.

He has indicated a very understanding desire to work as a team 

with the full Commission.

Laws, however, are not made for men b ut for the public interest 

and, in my opinion, the approval of section 2 of this plan would open 

the door to w’ide abuse on the pa rt of an ambitious or unscrupulous 

Chairman.
118 REO RGA NIZA TION PLANS 1 AND 2 OF 1961

He could, for example, assign me to duties away from th e Commission’s offices for an extended period and, thereby, perhaps affect the 

result of a decision on an important policy question by reason of my 

absence.

He could assign members of my personal staff to duties which 

would deprive me of their services during periods when they would 

be required to assist me in, perhaps, analyzing highly technical engineering and legal matters.

Through the assignment of staff personnel to special projects, he 

could achieve a predetermined result insofar as the staff recommendation is concerned. These, briefly, are the practical difficulties I have 

with Reorganization Plan No. 2, and 1 would like to say that, as far 

as I am concerned, I would be prepared to make f urther delegations 

to the Chairman.

As a matter of fact, we have a staff study underway on further 

delegations to the staff, but I would prefer to retain on an absolute 

basis the ability to remove tha t delegation when the need no longer 

existed or, perhaps, it were abused.

I would also like to make, as, say, one of the nonlawyer members 

of the Commission, a case for the oral argument.

I would just like to say t hat as one member of the Commission I 

actually find it a great help to me personally, in reaching my conclusions, when we require these practitioners before us to present to us, 

generally within a 20-minute period, their case.

Now this requires them to really capsule what is the strong point 

in their case, both the pro and the con. This, I find, is very helpful. 

The practitioners feel, as well as the applicants feel, th at it is their 

only opportunity to reach and to talk to the people who would make 

a decision in this area.

I think, Mr. Chairman, tha t about covers briefly my position on 

this matter.

The Chairman. Thank you very much, Commissioner Lee, and I 

understand you had a statement you wanted to file in addition to th at ?

Mr. Lee. Yes.

The Chairman. Very well. You may step aside at this time.

The statement may go in the record.

(The complete text of the statement of Commissioner Robert E. 

Lee is as follows:)

Statement of Robert E. Lee, Commissioner, on Reorganization Plan

No. 2, 1961

I am opposed to Reorganization Plan No. 2 of 1961. Although I agree with some 

of the fundamental objectives of the plan, I feel tha t these objectives can- be 

attained better through amendment of the Communications Act following legislative hearings. In this connection, I have reference to the area that would give 

the Commission a greater amount of latitude in handling its internal administrative procedures.

As indicated by Chairman Harris, I am afraid that section 1 of the plan now 

before you would leave us in a never-never land insofar as our hearing procedures 

are concerned. This is not to say tha t I am unwilling to delegate functions because I have acquiesced in such delegations in the past and I am willing to delegate more functions in the future . I am uncertain, however, just what effect 

section 1 of the plan will have on the existing provisions of section 409 of the 

Communications Act of 1934, as amended.
REORGA NIZATION PLA NS 1 AND 2 OF 1961 119

My primary concern arises out of section 2 of the reorganization plan. This, 

it seems to me, strikes at the basic philosophy underlying the structure of the 

Communications Act. As you know, this section withdraw s from the Commission 

the function of assigning personnel and makes an absolute grant of this function 

to the Chairman. There are no exceptions to this gra nt of authority. The Chairman's word would be absolute to the point th at he would have authority to assign 

all Commission personnel, including Commissioners and the personal staff of the 

several Commissioners.

In my study of the proposal before you, I reviewed the hearings on Reorganization Plan No. 11 of 1950. The latter plan bears some similarity to Reorganization Plan No. 2 of 1961, although it did not seem to go as far as the current 

reorganization plan appears to do.

In reviewing the 1950 hearing record, I was particularly impressed with the 

testimony of former Senator Edwin C. Johnson of Colorado in opposition to the 

plan. His testimony is set forth in the transcript of “Hearings before the Committee on Expenditures in the Executive Department, U.S. Senate, 81st Congress, 

second session, on Senate Resolution 253, 254, 255, and 256,” which were held 

on April 24, 25, and 26, 1950. I feel tha t the following quotation from his testimony (tran script, p. 16) is apropos:

“It is the long-established congressional policy that regulatory agencies must be 

independent and directly responsible to Congress.

“The necessity of maintaining the independence of regulatory bodies was discussed during the Senate debate in 1938 on the Government departments reorganization bill, a legislative culmination of a professional study of government and 

how to reorganize it. In that debate former Senator Champ Clark, of Missouri, 

one of the Senate’s greatest students of parliamentary history, now one of our 

really great judges on the Federal bench, pointed out th at the ‘principal functions 

of such commissions as the Interstate Commerce Commission, the Federal Trade 

Commission-, and the Communications Commission are as agencies of the legislative branch of the Government and as extensions of the legislative power’ and 

that ‘the important function which has been conferred on such commissions is the 

ascertainment of particula r facts in order to carry out a policy of Congress enunciated in a sta tute’ and ‘they are legislative rather than executive or administrative in character.’

“Many of these statements are direct quotes of Mr. Clark.

“Senator Barkley, the then majority leader and now our distinguished Vice 

President, stated during the debate tha t he ‘would not approve any measure which 

provided for a one-man Interstate Commerce Commission, or a one-man Communications Commission, or a one-man Federal Trade Commission, o r a one-man 

Power Commission, because those Commissions are agencies set up by Congress in 

the performance of the duty of Congress to regulate commerce among the States.

“Senator Barkley, now our Vice President, said :

“They are quasi judicial and quasi legislative. They are quite different from 

a commission which is created merely to aid the President in determining how 

he shall perform his executive duty of appointing people to office, in the way of 

testing their qualifications (for instance, the Civil Service Commission). One is 

an executive function, the others are legislative and judicial, and the only reason 

why the Interstate Commerce Commission was set up, and why the Federal Trade 

Commission, and the Power Commission, and the Communications Commission, 

were set up under the autho rity to regulate commerce among the States and with 

foreign governments, was the knowledge th at Congress itself could not do that.

“But Plan No. 7 does just exactly what Vice President Barkley said he would 

never approve. It makes the I nte rsta te Commerce Commission a one-man agency, 

just as plans Nos. 8, 9, and 11 make one-man- agencies of the Trade, Power, 

and Communications Commission.”

I am certain tha t Senator Johnson would view the reorganization plan before 

you as being equally repugnant.

At this point I would like to digress for a moment to make it abundantly 

clear that I have no concern tha t the current Chairman would in any way 

abuse any delegated power, whether tha t power was delegated to him by 

the Commission or by the law. On the contrary, the Chairman has indicated 

a very understanding desire to work as a team with the full Commission. 

Laws, however, are not made for men but for the public interest and. in my 

opinion, the approval of section 2 of Reorganization Plan No. 2 of 1961 would 

open this door to wide abuse on the part of an ambitious or an unscrupulous 

chairman. A concrete example or two will demonstrate my concern.
120 REORGANIZATION PLANS 1 AND 2 OF 1961

The Chairman could assign me to duties awa y from the Commission’s offices 

for an extended period and thereby affect the res ult of a decision on an importa nt policy question.

lie could assign members of my personal staff to duties which would deprive 

me of their services during periods when they would be requ ired to assis t me 

in analyzing highly technical engineering and legal matters.

He could assign me to a special project, such as for example the subscription 

television case, th at would take all of my time to the detrim ent of my other 

work.

Through the assignment of staff personnal to special projects, he could achieve 

a predeterm ined result inso far as a staff recommendation is concerned. In 

this connection, the psychological effect on the staff of making one Commissioner so much more powerful tha n the others cann ot be ignored. The staff 

will be quick to recognize who is supreme and will rea ct accordingly. They 

would be less tha n human if they did not.

These are the practic al difficulties I have with Reorganization Pla n No. 

2 of 1961.

I app reciate the opportunity to express my opinion on this matt er a nd should 

you requ ire anythin g furth er I would be most happy to oblige.

The Chairman. Mr. Craven?

STATEM ENT OF T. A. M. CRAVEN, COMMISSIONER, FED ERAL 

COMMUNICATIONS COMMISSION

Mr. Craven. Mr. Chairman, and members of the committee, my 

name is T. A. M. Craven. I am a member of the Commission. I 

subscribe to the general objectives of the proposed FCC Reorganization Plan No. 2 insofar as these objectives relate to expediting the 

adjudicatory and administrative processes of the Commission.

I agree in principle with the statement presented by the Chairman of the Federal Communications Commission to this subcommittee yesterday. However, since I am not a lawyer, I doubt my competence to pass judgment upon the legality of plan No. 2 in terms 

of the Reorganization Act of 1949 pursuant to which the President 

transmitted the plan to Congress.

Tha t ends my statement.

The Chairman. That concludes your statement?

Mr. Craven. That is right, sir. A 60-second commercial.

Mr. Moss. You are entitled to an additional 10, I understand.

The Chairman. Very well. Did you have an additional statement 

tha t you wanted to include in the record?

Mr. Craven. No, sir. I read it.

The Chairman. You read it? Thank you very much.

Commissioner Frederick W. Ford is our next witness.

STA TEM ENT OF FR ED ER ICK W. FORD. COMMISSIONER, FED ERAL 

COMMUNICATIONS COMMISSION

The Chairman. Commissioner Ford?

Mr. Ford. Do you want me to read this statement, Mr. Chairman?

The Chairman. Well, Commissioner, you have a rather lengthy 

statement or probably I should say tha t you have a rath er full and 

complete statement and avoid the connotation by the term that I did 

use, and it would require some time to read the entire statement, would 

it not?

Mr. F ord. I would judge in the neighborhood of about 20 or 25 

minutes, maybe 30.
REORGA NIZATION PLANS 1 AND 2 OF 196 1 121

The Chairman. Well, my apprehension is tha t we will be called to 

the floor of the House and I wanted to get the position from each of 

you before we get into that, so we can have it in the record.

Mr. Ford. I will be perfectly happy just to file it.

The Chairman. Could you file it and then give us a brief resume 

of it?

Mr. Ford. Yes. I will describe what is in the statement.

The Chairman. Yes, or if you care to you may proceed to read 

the statement, since the others were very brief anyway. I mean, the 

other Commissioners’ statements were very brief.

Mr. F ord. Well, 1 will be governed by whatever the committee 

wishes.

Mr. R ogers of Texas. I would like to ask now, with the permission 

of the chairman, tha t his entire statement with appendices be included 

in the record. And then Commissioner Ford will have the opportunity to read or summarize any or all portions of it.

The Chairman. Very well, if tha t suits the Commissioner.

Mr. Ford. Wha t I have attempted to do in the statement, really, is 

to accumulate all the materials which I consider a ppro priate for the 

use of the committee in making up its mind as to whether or not i t is 

for this reorganization plan or is against it.

I have, in effect, here constructed the statement on the basis of what 

the statute presently authorizes the Commission to do on the basis of 

all of our authority. And then I tried to set for th what the reorganization plan does, and then I have gone into a discussion of first, section 

1 and section 2 and then section 3 of the reorganization plan and 

pointed out all of the deficiencies which, I think, exist in it.

Then, in conclusion, I have pointed out the four or five basic problems I have with the plan, and I have done th at by stating tha t my 

own view is th at Reorganization Plan No. 2 of 1961 should be rejected 

because it threatens to impair the status of the agency as an independent body of seven coequal members; because it is unlikely to 

achieve its objective of more economical and expeditious administration * * *; and because it attempts in the name of reorganization to 

alter radically the procedural righ ts of litigants before the Commission, an undertaking far more appropriate for legislative consideration by the Congress than for Executive action pursuant to the Reorganization Act.

Tha t conclusion is based on the detailed examination of the 

language and I have set forth tha t the big problem I had with it is, 

on the one hand, you have the Administrative Procedure Act, which 

prescribes the method of hearing and the method of review.

On the other hand, you have the Communications Act which prescribes the method of hearing and the method of review. Now, cutting across that you have this reorganization plan with the stated 

intention that the reorganization plan does not, in any way, attempt 

to modify the Adm inistrative Procedure Act.

And so I come to a very difficult task, it seems to me, of trying to 

find out what is left both in the Communications Act and what the 

effect would be of the Administrative Procedure Act on our procedures as set forth in our regular practice. And I have been try ing 

to be a little bit constructive.

I did not have an opportunity in the short period of time to try 

to draft a proposal which I thought would meet some of these very
122 REORGANIZA TION PLAN S 1 AND 2 OF 1961

favorable things tha t I found in the plan and then eliminate those 

which I felt were not good and would throw our procedures into somewhat of a chaotic condition.

And so in the conclusion I have indicated that, on the constructive 

side, if plan No. 2 is rejected I am hopeful that the Congress will consider putting the Commission in a position to adopt rules tha t will 

enable us to to establish a Board of Hearing Appeals composed of 

high-grade employees who would handle all oral arguments on exceptions to examiners’ decisions assigned to them by the Commission.

If, however, the Commission desired, it should be able to assign 

a case or other work to a panel of Commissioners or retain important 

cases for hearing by the full Commission. In any case in which the 

Board or a panel issued a final decision with which three Commissioners do not agree, the matter could be ordered before the full Commission on their own motion but not by petition of the party.

The system should work very much like the Board of Immigration 

Appeals in the Department of Justice.

Thus the routine cases would be weeded out and the Commission 

would be occupied only with cases of some importance. And what 

this seeks to do is to give us the flexibility to set up a board of employees down there who are highly skilled in these hearing matters 

and in the small “shrimp boat” case and in the other small cases we 

have hundreds of operators, any one of which can tie up this Commission for a h alf day on a fairly minor matter, when our time is quite 

pressed looking toward space and things of that sort.

And it seems to me on those routine cases, if we had a board of 

tha t kind with good hearing officers, appellate officers, then they would 

write the decision. We would delegate the oral argument to them, 

because I am firmly convinced that oral argument should be preserved at some level of review, and this would permit us to do that.

I do not think tha t we can delegate oral argument under the Reorganization Plan No. 2 because of the language of section 1 (b) which 

says tha t the Commission shall retain the right of review. So th at 

I do not find that we can do that.

So, on the whole, while I am very sympathetic with some of the 

things attempted to be accomplished here, I am just afraid tha t we 

cannot quite do it. Then on the question of writing decisions, the 

Commissioners writing decisions, this is very troublesome with this 

reorganzation plan.

Mr. Bennett. Before you leave that, could I ask you one question 

about your conclusion ?

You say that any case where a board or panel issued a final decision 

with which three Commissioners do not agree, the matter could be 

ordered to the full Commission on th eir own motion but not by petition by the parties.

You do not mean you would deprive a party of a right to ask for it, 

do you ?

Mr. Ford. Yes, sir.

Mr. Bennett. You would not permit them even to ask for it?

Mr. F ord. No, sir; I would not.

Mr. Bennett. Why not ?

Air. Ford. Well, under the Administrative Procedure Act, in section 1, “agency” is defined as an authority.
REORGA NIZATION PLAN S 1 AND 2 OF 19 61 123

Now within the framework of Government there are many authorities within agencies. The Board of Immigration Appeals is such 

an auth ority within the Department of Justice, and in my construction of the Administrative Procedure Act you are entitled to one 

appeal, and this agrees with the Attorney General’s Manual of 1947.

So that once you have your one appeal you have had your one argument before a reviewing authority, and then, to me, the purposes of 

fairness of justice, of review, have been accomplished.

Now, since some of these opinions can, in effect, establish policy, 

some of them can go off half cocked, and it would seem to me that 

the Commission should be in a position for three Commissioners to 

reach down and pull tha t case up and say, “Look, we are going to 

review it,” and then review it and order a full-scale oral argument or 

proceed in which manner the Commission saw fit.

Mr. Bennett. By the same token, if the Commissioner went off 

halfcocked, should not the litigant, at least, have the right to ask 

for a review and set forth his reasons, if there is any substance to 

them ?

Mr. F ord. Well now, if this is in statutory language in such a fashion th at the Commission can say no, then tha t is all right, but if the 

Commission has to abide by the Saginaw case in which we have to 

set fo rth at great length all of our reasons and review the things, and 

if they have to satisfy the court of appeals, as in the W LO X case, 

and set forth our reasons, then there is no reason for us to have this 

intermediate board and we might as well hear the whole thing.

And tha t is the reason I was trying to state it in such a fashion 

tha t it would be within our discretion.

I am seriously afra id that, under the reorganization plan, under 

6(d) of the Administrative Procedure Act, we are going to have to set 

forth our full reasons and all of this delegation and the timesaving 

tha t we hope for in the reorganization plan No. 2 just would not 

come about because the court would require us to review the whole 

thing anyway. And tha t is the reason that I put it in tha t sort of a 

frame.

Now, it isn’t that I have any objections to asking for a review, but 

I am trying to put it in such a position tha t the court of appeals will 

not require us to review every bit of the testimony and write full long 

opinions on it, and then we are just right back where we started and 

tha t is what I am trying to avoid.

I would have no objection to his filing a petition for appeal as long 

as I could read it through and say no, but if I have got to go into it 

at great length that is another thing.

On the question of writing decisions, I am very much troubled by 

this plan, and I would like to point th at out especially.

The idea seems to be that the Commission could—and this all deals 

with the abolition of the functions of the review section and of the 

staff. And now, in 5 (c ), the last sentence of t hat section says tha t no 

one can assist the Commission in writing these decisions except the 

three people appointed under section 4(f) or something of th at sort.

Now, so that if you abolish the staff, you abolish their function 

and no one can help me write the decision except my engineering assistant, and my confidential secretary.
1 2 4 REORGANIZA TION PLANS 1 AND 2 OF 19 61

Now, if nobody can help me write any of the decisions—and we 

write 60 decisions a year, and the average examiner issues 10 decisions 

a year—then I will he so completely bogged down in writing decisions 

tha t I just won’t get anything else done.

And tha t is one of the basic objections I have to the plan. And if 

the plan does go into effect I am hopeful that something can be done 

to make clear that the last section of 5 (c) , with tha t restriction in it, 

tha t something is done about it so tha t I won’t just have to read 

and write everything tha t there is to come out down there, and the 

Commissioners won’t have to do this personally.

Mr. Bennett. The thing I believe you are trying to get rid of is 

the delay tha t has been caused by having this review section review 

something that they had nothing to do with initially.

So having a complete review of the matter after the Commission 

has gone over it and rendered its final decision-----

Mr. F ord. Well, you see, I think with my intermediate board we 

wouldn’t have tha t problem, because those people would have an 

opportunity to study these cases and write those decisions.

Whereas, I don’t see how we are going to reassign—and I know 

there is a difference of opinion on th is and on the interpretation of 

the plan—but I don't see how we are going to take the review staff 

and assign them around to my office when the last sentence of section 

5(c) says I can’t use them.

So we couldn’t have seven review sections and somebody immediately under my control or we couldn’t have them all in one group.

Well, those were the two points I had specially to make. I am 

afraid I got a little away from the summarization of the statement.

The Chairman. That is all right.

Mr. Springer. Mr. Chairman, I want to take this opportunity to 

than k Mr. F ord for his statement. I have read it and it is excellent.

I think it is very, very good.

Mr. Ford. Well, I think you will find in the appendix I have set 

forth the specific language of the sections of the Administrative 

Procedure Act and the Communications Act which I think are appropria te to consider in connection with the plan.

I have set forth or quoted the reorganization plan itself. I have 

set forth the Reorganization Plan of 1950 which included an exception of Commission personnel from th e jurisdiction of the Chairmen 

in making assignments; whereas, this one does not contain this exception so that the legislative history of the two indicate to me that if 

this is accepted then the Chairman would have the authority to reach 

in and take my personal secretary, and, of course, I wouldn’t like th at 

very well.

And in addition to that, I have included Administrative Order 

No. 11, adopted by the Commission initially as Administrative No. 8, 

I think, about 1949, delegating and further defining the duties, the 

executive functions of the Chairman.

And that was revised in 1958, I believe, and I have set that forth 

so tha t the committee would have the information on the manner in 

which the Commission has delegated further auth ority to the 

Chairman.

Mr. R ogers of Texas. I would just like to say, Commissioner Ford, 

as a member of this subcommittee, I am very grateful to you for the 

time and everything tha t you have put into tha t statement. It is, in
REORGANIZATION PLANS 1 AND 2 OF 19 61 125

my opinion, a scholarly approach to this question. I believe it will 

be of much benefit to the subcommittee when we go into this.

Air. Ford. Thank you very much.

The Chairman. Commissioner Ford , thank you very much.

(The full text of the statement of Commissioner Frederick W. 

Ford with appendixes is as follows:)

Statement of Fredekick W. Ford, Commissioner, Federal Communications

Commission, on Reorganization Plan No. 2 of 1961 

I . IN TR ODU CT IO N

My name is Fre derick W. Ford. I have been a member of th e Commission since

1957 and served as its Chairman for almost a year. 1 also served on the staff 

of the Commission in the opinion-w riting section, now called the review section, 

and later as Chief of its Hearin g Division from early 1947 un til late 1953. I 

appear here today to present my personal views on Reorganization Plan No. 2 of 

1961, providing for reorganization in the Feder al Communications Commission.

I am in agreeme nt with the Pre sid ent’s sta ted objectives in submitting plan 

No. 2 to provide, “* * * for gre ate r flexibility in the handling of the business 

before the Commission, permittin g its disposition at different levels so as better 

to promote its efficient disp atch,” and of relieving “* * * the Commissioners 

from the necessity of dealing with many matt ers of lesse r importance and thu s 

conserve their time for the consideration of major ma tters of policy and pla nning.”

I am also in agreeme nt with the House Committee on Government Operations 

in its Report 195, 87th Congress, 1st session, recommending extension of the 

Reorganization Act of 1949 when it stated at page 2 that, “Criticisms have been 

made and the committee has been concerned with the tendency of the Executive to dr af t reorgan ization plans in general term s so that the full scope of the 

reorganiza tion is not always read ily appar ent from the contents of the plans as 

presented.” This sta tem ent is particularly tru e of the plan now before you. It 

will be necessary, therefore, for me to analyze in some detail the provisions of 

plan No. 2 in an effort to ass ist the committee in reaching a conclusion on its 

merits.

In orde r to understand the effect of this plan, i t is de sirable to review the present sta tut ory au tho rity of the Commission and its Chairman, and compare that 

autho rity with the delegatio ns contained in the plan and the power given to the 

Chairman. This will also aid in und erstandin g the functions which are abolished. In this way I hope to be of the gre ate st assista nce to the committee.

I I . PR ESEN T A U TH O R IT Y OF T H E CO M M IS SIO N

The authority of the Commission has been delineated after yea rs of study and 

hea rings by thi s and other committees. The sections of the law which I believe 

bear on Reorganization Plan No. 2 are summ arize d in the following narra tiv e.

Section 5(d) ( l ) 1

 of the Communications Act of 1934, as amended, hereinafter 

referr ed to as Communications Act, provides for delegations of auth ority except 

in adjudi catory cases for which provision is made in section 409.2

Section 5(d) (1) author izes the Commission when necessary to the proper 

func tioning of the Commission and the prom pt and orderly conduct of its business, by order to assig n or refer any portion of its work, business, or func tions 

to an individual Commissioner or Commissioners or to a board composed o f one 

or more employees of the Commission to be designated by such order for action 

thereon, and may at any time amend, modify, or rescin d any such order. It 

fu rthe r provides th at any action taken und er such order unless appealed shall 

have the same effect as if done by the Commission and may be enforced in the 

same way.

Section 5(d) ( 2) 3

 provides for an appe al from such actio n to the Commission 

which shall be passed upon by the Commission and if gra nted it may affirm,

1

 See ap p. 1 fo r fu ll te x t of sec. 5 (d ) (1 ).

2

 See ap p. 2 fo r ap pro pri ate su bs ec tion s of

 sec. 409. 

8

 See ap p. 1 fo r fu ll te x t of sec. 5(d ) (2 ).

73 53 1— 61------ 9
126 REORGANIZA TION PLANS 1 AND 2 OF 19 61

modify, or set aside such action or order a rehearing in accordance with section 405?

Section 405 provides that any person aggrieved by any decision, order or requirement of the Commission may i>etition for rehearing within 30 days from 

public notice of the action complained of and specifically requires the Commission to enter an order “* * * with a concise statement of the reasons therefor, 

denying a petition for rehearing or granting such petition, in whole or in part, 

and ordering such further proceedings as may be appropriate.” In this connection the provisions of section 6( d) 4 5 * of the Administrative Procedure Act should 

be considered in which the requirement is made that prompt notice of denials 

be given of any written application, petition, or other request by an interested 

person in any agency proceeding. Except where it affirms a prior denial or is 

self-explanatory, the notice must contain a simple statem ent of procedural or 

other grounds therefor.

Section 409 contains provisions relating to cases of adjudication designated 

for hearing. It provides tha t the Commission en banc or an examiner, pro- *

vided for in section 11 of the Administrative Procedure Act, shall conduct the

hearing; that the officer or officers conducting the hearing shall file an initial 

decision (except where he is unavailable or the Commission for good reasons 

orders the record certified to it) ; tha t the Commission shall permit the filing 

of exceptions to such initial decisions and hear oral argument on such exceptions before entry of a final order or decision; and tha t all decisions including 

the initial decision become a part of the record and shall “* * * include a statement of (1) findings and conclusions, as well as the basis therefor, upon all 

material issues of fact, law, or discretion, presented on the record; * * *.”

There follows in other subsections restrictions on examiners, certain ex parte 

contacts, separation of staff according to function, provisions as to witnesses, 

etc. It is well to add here tha t section 11 of the Administrative Procedure Act 

provides for the appointment and assignment of examiners. In addition, it 

expressly provides that examiners shall “* * * perform no duties inconsistent 

with their duties and responsibilities as examiners.”

It should also be noted that the 1952 amendments to the Communications Act 

amended section 4098 * in such a way as to eliminate the authority of individual 

Commissioners to preside at the taking of evidence in adjudicatory proceedings.

This amendment specifically referred to the Administrative Procedure Act in 

section 409(d) 7

 as required by section 12 of t hat act in making this and other 

modifications, including tha t in section 7(a ) of the Administrative Procedure 

Act. This latter section authorizes one or more Commissioners to preside a t the 

taking of evidence in an adjudicatory proceeding.

Section 5(a) 8

 of the Communications Act provides tha t the “* * * Chairman 

shall be the chief executive officer o£ the Commission.” It assigns certain duties 

to him including, “* * * generally to coordinate and organize the work of the 

Commission in such a manner as to promote prompt and efficient disposition of all 

matters within the jurisdiction of the Commission.” The executive responsibility 

of the Chairman with respect to the internal affairs of the Commission is furth er 

defined in Administrative Order No. 11.®

Section 4(f) (l) 10 gives the Commission the authority to appoint such employees 

as are necessary in the exercise of its functions and section 4( f) (2) 11 authorizes 

each Commissioner to appoint a legal assistant, an engineering assistant, and a 

secretary, each of whom shall perform such duties as such Commissioner shall 

direct.

Section 4 (i) 12 gives the Commission broad authority to make rules and regulations and issue orders not inconsistent with the act which are necessary in 

the execution of its functions. *

Section 4(j ) 13 authorizes the Commission to conduct its proceedings in such 

manner as will best conduce to the proper dispatch of business and to the ends 

of justice.

4

 S ee ap p. 3 f or fu ll te x t of sec. 405.

B S ee ap p. 6 fo r fu ll te x t of sec. 6 (d ) .

• S ee ap p. 2 fo r te x t of sec. 409 be fo re 195 2 am en dm en t.

7

 See ap p. 2 fo r fu ll te x t of sec. 40 9( d) ,.

8

 S ee ap p. 1 fo r fu ll te x t of sec. 5 (a ).

0

 See ap p. 8 fo r fu ll te x t of A dm in is tr at iv e O rd er No. 11.

50 See a pp . 7 fo r fu ll te x t of sec. 4 (f) ( 1 ).

11 S ee ap p. 7 f o r fu ll te x t of sec. 4 (f) ( 2 ).

12 S ee ap p. 7 fo r fu ll te x t of se c. 4( 1).

13 S ee ap p. 7 fo r fu ll te x t of sec. 4 ( j).
REORGANIZATION PLANS 1 AND 2 OF 1961 127

In pa rt O of its publishe d rules, the Commission lias set for th the func tions 

of its bureau s and major staff offices. It also has set forth cer tain deleg ations 

of final authority to them. From an examination of these regulations, it can 

be seen th at the Commission has assigned all of its personnel to the various 

work, business, and functions of the Commission, but has reta ined the function 

of voting on all actions for which final autho rity has not been delegated. 

These retained func tions include instructio ns to the staff through the Chairman, the form ation of policy, hearing oral argu men t and deciding adjudicatory 

cases, adoption of rules and regulations and the like.

We conduct our business at the regular weekly meeting. At this time all 

business for which final autho rity has not been delegated is presented by the 

staff on 1 of 12 agenda classified according to the major workload of the 

Commission. We also have numerous special meetings at which major ma tters 

are considered in greater detail, hold oral arguments, hearings en banc, etc. 

It is in this way th at our work is organized and the Commission exercises its 

functions.

III. PROPOSED AU THOR ITY OK THE COMM ISS ION

Before beginning my discussion of the plan and some of the modifications it 

make s in presen t law, I would like briefly to summarize plan No. 2.

Section 1( a) 14 of the pla n grants to the Commission in addition to its exist­ ing autho rity to delegate “the autho rity to delegate, by published order or rule, any of its func tions to a division of the Commission, an individual Commissioner, a hearing examiner, or an employee or employee board, including functions witli respect to hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business or ma tters: * * *.” [Emphasis sup­ plied.] This section then contains two provisos. The first to the effect that 

nothing in the plan shall supersede section 7( a) 16 of tlie Admin istrativ e Proce­ dure Act authorizin g the agency or one or more members of the body comprising 

tlie agency or examiners to preside at the tak ing of testimony. The second 

proviso in accordance with subsection (b) abolishes the function of the Commission with respect to the filing of exceptions to decisions of hearing exam iners 

and the function of hea ring oral arguments on such exceptions before the entry 

of any final decision as set for th in section 409(b) 18 of the Communications Act. Section 1(b ) require s the Commission to retain a disc retiona ry right of review of deleg ated actions on its own initiative, by a vote of three members, or, 

upon petition by a pa rty or interveno r of actions taken und er delegated autho rity within such time and in such manner as the Commission may by rule 

prescribe.

Section 1(c) provides th at if discretion ary review is declined or no review is 

sought within the time specified by the Commission, then the delegated action 

shall be deemed the actio n of the Commission for all purposes.

Section 2 of the plan tra ns fers to the Chairman the func tions of the Commission with respect to the a ssig nment of Commission personnel including Commissioners to perform such functions as may have been delegated by the Commission to Commission personnel inclu ding Commissioners, pursu ant to section 

1 of the reorganization plan.

Section 3 abolishes the review staff and its functions created by section 5(c) ” 

of the Communications Act.

IV. DISC USSION

Section 5(d) (1) of the Communications Act grants broad powers to the Commission to delegate any of its func tion s except those relating to cases of adjud icatio n as defined in the Administrative Proc edure Act which are specifically 

provided for in section 409 of the Communications Act. This power of delegation is to be exercised when it m eets the sta tut ory standa rd “* * * when necessar y to the prop er func tioning of the Commission and the prom pt and orderly 

conduct of its business * * Section 1( a) of plan No. 2 app ears to include 

all of th e autho rity in section 5(d) (1) and in addition to include cases of adjud ication for w hich special provision is made in section 409 by the use of the words

34 See app. 4 for full text of Reorganization Pla n No. 2 of 1961. 35 See app. 5 fo r fu ll tex t of sec. 7(a) of the Administrative Proce dure Act. 18 See app. 2 for full tex t of sec. 409 (b).

37 See app. 1 for full tex t of sec. 5(c).
12S REORGANIZATION PLANS 1 AND 2 OF 1961

“any of i ts functions” withou t any sta ndard and witho ut any reservatio n except 

section 7( a) of the Adm inistrative Proc edure Act relating to presiding officers18

and the discretionary right of review mentioned in section 1(b ) of plan No. 2. 

In fact, it specifically includes func tions with respect to hearing, determining, 

ordering or certifying as to “any work, business or matt er.” This language 

appears at first to give the Commission autho rity to dra stic ally alt er its present 

procedures under sections 409 and 405. The Commission would apparen tly he 

enabled to d elegate to a panel of Commissioners or a hoard of employees autho rity to review initial decisions and rule on petitions for reconsid eration unless the 

review provisions of section 5(d) (2) are held to apply to delegatio ns under 

plan No. 2. This would not seem to be the case because it is limited by its term s 

to “such delegations” meaning those in section 5(d) ( 1). Moreover, those supporting the plan make no contention th at the autho rity in the plan merges with 

th at in the Communications Act. In fact, they sta te the intention is to the 

contrary.

One other impediment might prevent the Commission from dele gating review 

functions withou t affirmative legislation. It has been stated that the Administra tiv e Procedure Act does not entitle one to an appeal from an initial decision. 

However, at page 83 of the Attorney General’s m anual on the Admin istrativ e 

Procedure Act issued in 1947 when Justice Clark was Attorney General, in commenting on section 8( a) of the Adm inistrative Procedure Act, it is stated : 

“Pa rties may appeal from the hearing officer’s initial decision to the agency, 

which must thereupo n itse lf consider and decide the case.” In addition, section 

6(d) of th at act provides for prom pt notice to be given of the d enial of requests 

by inte rested partie s in any agency proceeding and unless it affirms a prior 

denial or is self-explanatory, it is to be accompanied by a simple statem ent of 

procedural or other grounds.

The report of the House Committee on th e Jud iciary to accompany S. 7, which 

became the Adm inistrative Proc edure Act, indicated in commenting on this section that the ruling on a request should sta te the actual grounds for the denial 

and be sufficient to apprise a party of the basis for it. Since a panel of Commissioners or a board of employees could be an “agency” under section 2 of the 

Admin istrativ e P rocedure Act, I was hopeful th at the Commission would be able 

to delegate all of its functions in adjudicatory cases of a rou tine na ture if it so 

desired. However, wh at setcion 1( a) gives, section 1(b ) takes away in stating 

th at the “Commission shall retain a discretion ary rig ht of review * * * upon its 

own initiative or upon petition of a pa rty * * *.” Thus, if the Attorney Gener al’s m anu al is corre ct and the Commission must retain the discretion ary right 

of review und er plan No. 2 on petition, it would seem th at we will h ave to permit 

either proposed findings or exceptions to delegated actio ns and decide the cases 

ourselves und er the Adm inistrative Proc edure Act. Moreover, section 6(d) of 

the Administrative Procedure Act would require the Commission to review and 

set for th the reasons for our denial of a review of delegated actions und er section 1 of plan No. 2 and section 405 of the Communications Act would require 

the same thing concerning delegated actions under section 5(d) (1) of th at act 

even if 5(d) (2) is held to permit us to refu se to consider the m erits in “passing 

upon” an application for review of actions under 5(d) ( 1). This procedure in 

itself will require sub stantial review of the m erits and result in lit tle saving of 

time.

At the same time section 1(b) of plan No. 2 gives back wh at section 1(a) 

abolished with respect to exceptions and oral argument and yet probably prevents a delegation of those restored functions.

Section 1( a) abolishes the function of the Commission in accordance with section 1 (b ) with respect to the filing of exceptions to “decisions” of hea ring examiners and of hearing oral argument on such exceptions provided by section 

409(b) of the Communications Act. Section 1 (b) of plan No. 2 provides that the 

discretionar y right of review retained by the Commission with respect to its delegated functio ns shall be within such time and in such manner as the Commission sha ll by rule prescribe. Even though the function of oral argument is

5 8 1 do not be lie ve it could be se riou sl y co nt en de d th a t th e sta te m en t in pl an No. 2 

“ * * * th a t noth in g her ei n co nt ai ne d sh al l be dee me d to su pe rsed e th e pr ov isio ns of 

sec . 7 (a ) of th e A dm in is tr at iv e Pro ce dure Act” by in fe re nc e could he co ns true d as a 

m od ifi ca tio n of oth er se ct io ns of th a t act, es pe ci al ly sin ce th os e wh o su pport plan No. 2 

sta te th a t th ere is no in te nti on to m od ify th a t act in an y way : an d, in ad di tion , th er e is 

some qu es tion as to w het her a re org aniz at io n pl an could mod ify a pu re ly pr oc ed ur al 

sta tu te .
REORGANIZATION PLANS 1 AND 2 OF 1961 129

abolished, the Commission could by rule prescribe 19 exceptions and oral argu­ ment among other things as the manner of review, but since it is to be retained 

by the Commission, that method of review probably could not be delegated.

The language of section 1(a ) of the plan would appear to permit the delegation of any function to hearing examiners. Section 11 of the Administrative 

Procedure Act provides that examiners “* * * shall perform no duties inconsistent with their duties and responsibilities as examiners.” The Commission, 

therefore, has no function of making other assignments to them, but is by this 

language expressly prohibited from doing so. The provisions of the Reorganization Act of 1949 ( 5 U.S.C. 133z—3(a ) (4 )) states that no reorganization plan 

shall provide for or have the effect of “authorizing any agency to exercise any 

function which is not expressly authorized by law at the time the plan is transmitted to the Congress. * * ♦” It should be made clear, therefore, if this plan 

is to become effective, tha t it does not affect the independence of hearing examiners nor permit the Chairman under section 2 to modify the method of their 

assignment provided in section 11 of the Administrative Procedure Act.

In granting authority to delegate, plan No. 2 states “by published rule or 

order” whereas section 5(d) (1) of the Communications Act merely uses the 

word “order” leaving to the Commission the determination of when they should 

be published. Section 3 of the Administrative Procedure Act provides for publication of delegations of final authority and other matters such as procedure, 

etc. This requirement of publication in plan No. 2 would appear to be much 

broader. In some way it should be mane clear tha t the requirement of publication does not go to every minor delegation not covered by the Administrative 

Procedure Act or we may find ourselves with a very stringent limitation in issuing instructions to our staff if the plan becomes effective.

I think it is clear from the foregoing tha t section 1 would not bring about a 

reorganization in the usual sense. Rather, its primary objective is the elimination of procedural rights given to litigants before the Commission under the 1952 

amendments to the Communications Act. I have mentioned various problems 

that the plan presents, but I am sure many others will arise in its operation 

which are not obvious to me now.

The Commission, the communications bar, and the Congress all recognize that 

much could be done to improve on the 1952 amendments. Public Law 752, passed 

last year, was intended as a step in this direction. The Commission has adopted 

legislative proposals this year which we feel would bring further improvement. 

However, all of these proposals, as well as the 1952 amendments, become law 

only afte r extensive hearings and much revision representing the best efforts 

of all who will be affected.

Since sections 1 and 3 of this plan, to the extent tha t they represent anything 

new, are only incidentally concerned with internal agency organization and are 

essentially an overhaul of the procedure governing the manner in which parties 

are to have their cases heard and decided, I believe th at it would be far more 

appropriate to consider these measures in the normal course of the legislative 

process rather than as a reorganization plan to be adopted or rejected by the 

Congress within 60 days. In this way, there would be far greater opportunity to 

consider the pros and cons, to keep what is good and reject the rest.

I would now like to turn to section 2 of plan No. 2. This section appears to 

give the Chairman the power to assign any delegated function under section 1 

to a Commissioner. I have already pointed out tha t most of our work is delegated. Thus, the Chairman apparently could assign a Commissioner against 

his will to perform any work of whatever character to which a member of the 

staff could be assigned under the delegation of authority in section 1 of the plan. 

This could include assigning a Commissioner to preside at a protracted hearing 

in a distant section of the country to get him out of the way, writing many of 

the final decisions for the Commission or writing summaries of minor applications. The Chairman would also appear to have the power to remove a Commissioner from work assigned to him by the Commission and substitute other 

Commissioners or Commission personnel more to his liking.

The only protection members of the Commission would have from a vindictive 

Chairman would be to refuse to use any of the authority granted by this plan 

to delegate functions. This may not be possible, since section 3 of plan No. 2 

abolishes the review staff and its functions. This raises a question in my mind

19 See sec. 8 (b ) of th e A dm in is tr at iv e Pro ce du re Ac t fo r ad ditio nal a u th o ri ty to per m it 

ex ce pt io ns to in it ia l de cision s. Ap p. 9.

73 531— 61 ------10
130 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

of whether it abolishes the last sentence of section 5(c) of the Communications 

Act, which prevents any employee who is not a member of the review staff from 

performing any of the duties and functions to be performed by it except the legal, 

engineering, and personal secretary of each Commissioner. Does the plan by 

abolishing the review staff and its functions require Commissioners and their 

three assistants to prepare all of the final decisions which may be assigned to 

them by the Chairman? It would appear that it does. Would the Chairman 

have the power to invade the private office of a Commissioner and assign his 

personal staff to any delegated function under section 1 of the plan such as perhaps to assist another commissioner in delegated work? It would appear so, 

because Reorganization Plan No. 11 of 1950 excepted tha t personnel20 but no 

similar provision is contained in plan No. 2.

If the Chairman assigns a task to my personal secretary who has been with me 

many years and I assign her to other work, such as assisting me with this statement, which assignment takes priority, mine or his?

It may be contended th at there are safeguards against such action by a Chairman because the Commission could rescind a delegation under plan No. 2 and 

redelegate it under section 5(d )(1) of the act. This is true except perhaps for 

the writing of final decisions or unless four commissioners wanted to punish 

another commissioner. It may also be contended tha t the assignment of commissioners and staff by the Chairman could only be to the same class of work 

usually performed by them, but I find no such limitation in the language of 

plan No. 2. It should be noted that the present Commission is very compatible but there 

have been times in the past, I am told, when one Commissioner would not speak 

to another. I do not believe tha t any of these various possibilities for unf air treatment 

would take place, but with section 2 in effect they could. The mere fact that 

this power would exist would be a substantial deterrent to using the authority 

provided by this plan. To the extent tha t the authority would be used all 

Commissioners would be aware of the power and its possible exercise by a 

willful Chairman.

This power would permit the Chairman to select a Commissioner with predisposed ideas on certain subjects to write selected decisions opening the way 

for internal dissension. This has apparently been the case in some courts 

which did not use a form of rotating judges. More importantly, I feel, tha t 

notwithstanding the analogy to the judiciary which could be drawn, tha t the 

proposed system might well provoke suspicion and criticism which, however, 

unwarranted or misconceived would tend to impair respect for the integrity of 

our processes.

In any multiheaded agency such a s ours there must be some directing head, 

particularly in our quasijudicial work, just as there is in courts. In this connection it should be noted, tha t the Chairman already exercises substantial 

power in the employment, assignment, and promotion of personnel by virtue of 

section 5(a ) of the Communications Act and Administrative Order No. 11.

I know of few instances in which the Chief Judge of a court, however, is 

given plenary authority over work assignments to his brother judges aside 

from a rule of court which can be altered by the court in case of abuse. In 

fact, the Congress has provided by law tha t assignments are to be made as 

the court directs (28 U.S.C. 46). Moreover, since only a par t of our work 

is of a quasijudicial nature, it would be possible to so overburden a Commissioner with this type of assignment as to curtail his performance of other 

important duties. It is my belief tha t the principal power of the Chairman is the sympathy 

we all have with him in his assignment to one of the most difficult jobs in 

Washington—he is always on the firing line—but in addition, he controls a 

staff of 1,200 people, whereas a Commissioner has only 5 or 6. When documents of some length are prepared under the Chairman’s direction, it is almost impossible to alte r the course set by them because of the sheer volume 

and pressure of work. Turning to the final section of the plan—the abolition of the review staff. 

This is a step with which I am in at least partial agreement. On several 

occasions I have advocated the repeal of section 5(c) on the ground that it

20 See app. 10 for tex t of Reorganization Pla n No. 11 of 1950.
REORGA NIZATION PLAN S 1 AND 2 OF 196 1 131

4

w as un du ly re str ic ti v e an d th a t ad her en ce by th e ag en cy to th e pro vis io ns of 

se ct io n 5 of th e A dm in is tr at iv e Pro ce du re Act wou ld pro vi de all of th e sa fe ­

g uard s re quir ed .

As in dic at ed ab ov e, I be lie ve th a t ab ol ishi ng th e revi ew st aff and fu nct io ns 

in st ead of a re pea l of se ct ion 5 (c ) m ay ha ve th e eff ect of re quir in g co mmissi on er s an d th e ir sm al l st af fs to w ri te all fin al de cision s pe rs on al ly . As yo u 

kn ow I am op po sed to th e re quir em en t th a t de cision s be pre pare d and sig ne d 

under th e na m e of th e se ve ra l Com m ission ers on a ro utine ba sis, as I in dic at ed 

in my te st im on y be fo re th e Hou se In te rs ta te an d For ei gn Co mmerce Com m itt ee 

in M ar ch 1960. I m ust say , ho wev er, th a t if we w er e re lie ve d of pre pari ng 

de cision s in ro u n ti n e ca ses, th e bur den of th is wor k could po ss ibly be carr ie d 

w ithout re so rt to a di ffus e in sti tu ti o n al ty pe op inio n w ri ti ng proc ess, an d I 

mea n by th a t se ve n op inion w ri ti n g se ct io ns in st ea d of one . I ha ve in mind 

th a t our exam in er s h ear an d p re pare an avera ge of ab out 10 ca se s a y e a r; 

th a t heari ng ca se s oc cupy co ns id er ab ly less th an h alf of a Com m ission er 's al- r

re ad y crow de d d a y s; th a t 60 ca se s a year a fte r ex ce pt ions an d o ra l arg um ent

sh ou ld be is su ed by th e Com m ission ; and th a t un less th ere is a su bst anti al 

in cr ea se in th e num ber of Com m ission ers our pre se nt mem be rh ip wou ld becom e ho pe lesly bo gged do wn in th e ju dic ia li zati on of our work. On th e oth er 

ha nd , if we co uld del eg at e th e ro uti ne ca ses, it is my be lie f th a t Com m ission ers 

who a re la w ye rs could, w ith help, pre pare th e ir ow n de cision s in im port ant 

cases. I w as ho pe fu l th a t th is pla n wou ld perm it th is co ur se of ac tio n, b u t I

do no t be lie ve i t po ss ible fo r th e re as on s I ha ve s ta te d.

The pre para ti on of an op inion of a ju dic ia l n atu re is. as you kn ow , one of 

th e hi gh es t fo rm s of a r t in th e lega l pr of es sion . Ho w de cision w ri ti ng is to be 

ac co m plishe d by no nl aw yer s on our Com miss ion I do not kn ow , unl es s th ey 

re ly on som eone else. This, of co urse, wou ld defe at th e ob ject of th e re quir emen t. Ye t we ne ed non la w ye r mem be rs, such as en gi ne er s an d bu sine ss m en to 

ta ke t he lea d in man y im port ant are as of o ur re gula to r work.

v. CONCLUSION

My ow n vie w is th a t R eo rg an iz at io n P la n No. 2 of 1961 sh ou ld be re je ct ed 

be ca us e it th re ate n s to im p air th e st atu s of th e ag en cy as an in de pe nd en t bod y 

of seven co equal m em bers ; be ca us e it is unl ik el y to ac hiev e it s ob ject ive of “ mor e 

econ om ical an d ex pe ditio us ad m in is tr ati o n ; * * *” an d be ca us e it att em pts in 

th e na m e of re org an iz at io n to alt er ra dic al ly th e pro ce dura l ri ghts of li ti g an ts 

be fo re th e Co mm iss ion , an undert akin g fa r mor e appro pri ate fo r le gi sl at iv e co nsid e ra ti o n by th e Co ng ress th an fo r th e ex ec ut iv e ac tion pu rs u an t to th e R eo rg an ­

iz at io n Act.

On th e co ns truc tive sid e, if pl an No. 2 is re je ct ed , I am ho pe fu l th a t th e Co ngr es s w ill co ns id er putt in g t he C om miss ion in a po sition to a dopt ru le s th a t wou ld 

en ab le us to es ta blish a “B oa rd of H ear in g A pp ea ls” comp osed of hi gh gra de 

em ploy ees, wh o wo uld han dle al l ora l arg um en ts on ex ce pt ions to ex am in er’s de ­

cision s as sign ed to them by th e Co mm iss ion . If, ho wev er, th e Co mm iss ion de ­

si re d. it shou ld be ab le to as si gn a ca se o r oth er work to a pan el of co mm ission er s 

or re ta in im port ant ca se s fo r heari ng by th e fu ll Co mm iss ion . In an y ca se in 

which th e B oa rd or a pan el issu ed a fin al de cision w ith which th re e co mmissi on er s di d no t ag re e th e m a tt e r could be or de re d be fo re th e fu ll Co mm iss ion

* on th eir own mo tio n, hu t no t by pe tition of a p art y . The sy stem sh ou ld wor k

ve ry mu ch lik e th e B oa rd of Im m ig ra tion App ea ls in th e D epar tm en t of Ju st ic e. 

Thu s, th e ro ut in e ca se s wou ld be we ed ed out an d th e Co mm iss ion wo uld on ly be 

oc cu pied w ith ca se s o f som e i m po rtan ce .

r

Appen dix 1

Com mun icat ions Act of 1934, as Amended

Sec. 5. (a ) The mem be r of th e Co mm iss ion de si gna te d by th e P re si dent as 

C hai rm an sh al l be th e ch ie f ex ec ut iv e offic er of th e Co mm iss ion . It sh al l be hi s 

duty to pr es id e a t al l m ee ting s an d se ss io ns of th e Co mmiss ion, to re pre se nt th e 

Co mmiss ion in all m att ers re la ti n g to le gi sl at io n an d le gi sl at iv e re port s, ex ce pt 

th a t any co m m ission er m ay pre se nt his ow n or m in ori ty view s or su pp le m en ta l 

re po rt s, to re pre se nt th e Com miss ion in all m att ers re quir in g c on fe re nc es or comm uni ca tions w ith oth er gov er nm en ta l officers, depart m ents or ag en cies, an d ge ner al ly to co or di na te and or gan iz e th e w or k of th e Com miss ion in su ch m an ner
132 REORGANIZATION PLA NS 1 AND 2 OF 196 1

as to promote prompt and efficient disposition of all ma tters within the jurisd ic­ tion of the Commission. In the case of a vacancy in the office of the chairma n of tiie Commission, or the absence or inab ility of the chairma n to serve, the Com­ mission may temporarily designate one of its members to act as chairman until the cause or circumstance requiring such designation shall have been eliminated 

or corrected. (li) Within six months after the enactme nt of the Communications Act Amend­ ments, 1952, and from time to time there after as the Commission may find neces­ sary, the Commission shall organize its staff into (1) inte grated bureaus, to function on the basis of the Commission’s principal workload operations, and (2) such other divisional organizations as the Commission may deem necessary. Each such integrated bureau shall include such legal, engineering, accounting, administrative, clerical, and other personnel as the Commission may determ ine 

to be necessary to perform its functions. (c) The Commission shall establish a special staff of employees, hereinafter in this Act referred to as the “review staff,” which shall consist of such legal, engineering, accounting, and other personnel as the Commission deems necessary. The review staff shall be directly responsible to the Commission and shall n ot be made a part of any bureau or divisional organization of the Commission. Its work shall not be sui>ervised or directed by any employee of the Commission other than a member of the review staff whom the Commission may designate as the head of such staff. The review staff shall perform no dutie s or function s other than to assist the Commission, in cases of adjudication (as defined in the Admin­ istrativ e Procedure Act) which have been designated for hearing, by prepa ring a summary of the evidence presented at any such hearing, by preparing, after an initial decision b ut prior to oral argum ent, a compilation of the fac ts material to the exceptions and replies thereto filed by the parties, and by preparing for the Commission or any member or members thereof, without recommendations and in accordance with specific directions from the Commission or such member or members, memoranda, opinions, decisions, and orders. The Commission shall not permit any employee who is not a member of the review staff to perform the duties and functions which are to be performed by the review staf f; but this shall not be construed to limit the duties and functions which any ass istant or secretary appointed pur sua nt to section 4(f )( 2) may perform for the commissioner by whom he w as appointed. (d) (1) Except as provided in section 409, the Commission may, when neces­ sary to the proper functioning of the Commission and the prompt and orderly conduct of its business, by orde r assign or refer any portion of its work, busi­ ness, or functions to an individual commissioner or commissioners or to a board composed of one or more employees of the Commission, to be designated by such orde r for action thereon, and may at any time amend, modify, or rescind any such order of assignment or reference. Any order, decision, or report made, or other action taken, pursu ant to any such orde r of assignment or reference shall, unless reviewed pursuant to paragraph (2), have the same force and effect, and shall be made, evidenced, and enforced in the same manner, as orders, decisions, reports, or other action of the Commission. (2) Any person aggrieved by any such order, decision, or report may file an application for review by the Commission, within such time and in such form as the Commission shall prescribe, and every such application shall be passed upon by the Commission. If the Commission grants the application, it may affirm, modify, or set aside such order, decision, report, or action, or may order a rehe aring upon such order, decision, report or action und er section 405. * * *

Appendix 2

Communications Act of 1934, as Amended

Sec. 409. (a) In every case of adjudication (as defined in the A dministrative Procedure Act) which has been designated for a hea ring by the Commission, the hearing shall be conducted by the Commission or by one or more examiners provided for in section 11 of the Adm inistrative Procedure Act, designated by 

the Commission. (b) The officer or officers conducting a hea ring to which subsection (a) applies shall prep are and file a n initial decision, except where the hearing officer be­ comes unavailable to the Commission or where the Commission finds upon the record t ha t due and timely execution of its functions imperatively and unavoida-
REORGA NIZA TIO N PL AN S 1 AND 2 OF 1961 133

bly require tha t the record be certifie d to the Commission for initi al or final 

decision. In all such cases the Commission shall permit the filing of exceptions 

to such initial decision by any party to the proceeding and shall, upon request, 

hear oral argum ent on such exceptions before the entry of any final decision, 

order, or requirem ent. A ll decisions, incl udin g the initial decision, sha ll become 

a part of the record and sha ll include a stateme nt of (1) findings and conclusions, as well as the basis therefor, upon all material issues of fac t, law, or 

discretion, presented on the reco rd; and (2) the appropriate decision, order, 

or requirement.

(c) (1) In any case of adjudicati on (as defined in the Adm inis trat ive Procedure Act) which has been designat ed for a hear ing by the Commission, no 

examiner conduct ing or par tici pat ing in the conduct of such hear ing shall, except 

to the extent required for the disposition of ex parte matters as author ized 

by law, consult any person (exce pt anoth er exam iner par ticipating in the conduct of such hearing) on any fa ct or question of law in issue, unless upon notice 

and opportunity for all par ties to particip ate. In the perform ance of his duties, 

no such examiner sha ll be responsible to or subje ct to the supervision or direction of any person engaged in the performance of inve stiga tive, prosecutory, or 

other functions for the Commission or any other agency of the Government. 

No exam iner conducting or partici pat ing in the conduct of any such hearin g 

shal l advise or consult with the Commission or any member or employee of the 

Commission (except anothe r exam iner partic ipating in the conduct of such hearing) with respect to the in iti al decision in the case or with respect to exceptions 

taken to the findings, ruli ngs, or recommendations made in such case.

(2) In any case of adjudicati on (as defined in the Adm inis trative Procedure 

Ac t) which has been designated for a hea ring by the Commission, no person 

who has parti cipated in the presentation or prepa ration for presen tation of 

such case before an exam iner or examiners or the Commission, and no member 

of the Office of the Gen eral Counsel, the Office of the Ch ief Engi neer , or the 

Office of the Ch ief Acco unta nt sha ll (excep t to the exten t required for the disposition of ex parte matte rs as authorized by law ) direc tly or indi rect ly make 

any additional presentation respec ting such case, unless upon notice and opportu nity for all parti es to p arti cipa te.

(3) No person or persons engag ed in the performance of inve stigativ e or prosecuting funct ions for the Comm ission, or in any liti gat ion before any court in 

any case aris ing under this Ac t, sha ll advise, cons ult, or part icipate in any case 

of adjudication (as defined in the Adm inis trat ive Procedure Act ) which has been 

designat ed for a hearing by the Commission, exce pt as a witness or counsel in 

public proceedings.

(d) To the exte nt that the foregoin g provisions of this section are in conflic t 

with provisions of the Ad minis tra tive Procedure Ac t, such provisions of this 

section sha ll be held to supersede and mod ify the provisions of the Ac t.84

App en di x 3

Co m m u nic ati o n s Act of 1934, as A mend ed

Sec. 405. Aft er a decision, order, or requireme nt has been made by the Com ­

mission in any proceeding, any par ty thereto, or any other person aggrie ved or 

whose interests are adversely affec ted thereby, may petition for reh earin g; and 

it shal l be la wful for the Commission, in its discre tion, to gran t such a rehearing 

if sufficient reason therefor be m ade to appear. Petitio ns for rehearing m ust he 

filed within thir ty day s from the date upon which public notice is given of any 

decision , order, or requirem ent complained of. No such applic ation sha ll excuse 

any person from complying with or obeying any decisio n, order, or requirement 

of the Commission, or operate in any manner to stay or postpone the enforc ement thereo f, without the special order of the Commission. The filing of a petiM T he Com m un ic at io ns A ct A m en dm en ts, 195 2, su bsti tu te d su bs ec tion s (a ), (b ), (c ), 

and (d ) to re ad as above, fo r su bs ec tion (a ). T his su bs ec tion fo rm er ly re ad as fo llow s:

“ Sec. 409. (a ) an y mem be r or ex am in er of th e Co mmissio n, or th e dir ecto r of an y 

di visio n, whe n du ly des ig na te d by th e Co mmiss ion fo r su ch pu rp os e, may ho ld he ar in gs , 

sign an d issu e su bp en as . adm in is te r oa th s, ex am ine w itne ss es , an d rece ive ev iden ce a t an y 

pla ce in th e U ni te d S ta te s de si gn at ed by th e Co mm iss ion ; ex ce pt th a t in th e ad m in is tr atio n of ti tl e III an ex am in er may not be au th ori ze d to ex er ci se s uc h po wers w ith re sp ec t to 

a m att er in vo lv in g (1 ) a ch an ge of po lic y by th e Co mmiss ion, (2 ) th e re voc at io n of a 

st ati on lic en se, (3 ) new de vice s or de ve lo pm en ts in ra di o, or (4 ) a new ki nd of use of 

freq ue nc ie s. In all ca se s hea rd by an ex am in er th e Co mmissio n sh all h ear or al arg um en ts 

on re ques t of eit her p art y .”
134 REORGANIZATION PLANS 1 AND 2 OF 1961

tion for rehearing shall not be a condition precedent to judicia l review of any 

such decision, order, or requirement, except where the party seeking such review 

(1) was not a party to the proceedings resulting in such decision, order, or 

requirement, or (2) relies on questions of fac t or law upon which the Commission has been afforded no opportu nity to pass. The Commission shall enter an 

order, with a concise statement of the reaso ns therefo r, denying a petition for 

rehearing or granting such petition, in whole or in par t, and orde ring such 

furth er proceedings as may be ap pr op ria te: Provided, Th at in any case where 

such petition related to an instrument of author ization granted without a hearing, the Commission shall take such action with in ninety days of the filing of 

such petition relates to an instrument of authorization granted without a hearmission may establish, except that no evidence other than newly discovered evidence, evidence which has become available only since the orig inal taking of evidence, or evidence which the Commission believes should have been taken in the 

original proceeding shall be take n on any rehearing. The time within which a 

petition for review must be filed in a proceeding to which section 402 (a) applies, 

or w ithin which an appeal m ust be tak en under section 402(b), shall be computed 

from the date upon which public notice is given of orders disposing of all i>etitions for rehe aring filed in any case, but any decision, order, or requirement 

made after such rehearing reversing, changing, or modifying the original order 

shall be subject to the same provisions with respe ct to rehear ing as an original 

order.

Appendix 4

Reorganization Plan No. 2 of 1961

Pre pare d by th e P re si den t and tr an sm it te d to th e Sen at e an d1

 t he Hou se of R ep re se nt at iv es 

in Co ng ress assembled , Ap ril 27, 196 1, p urs uant to th e pr ov isio ns of th e Reo rg an iz at io n 

Act of 194 9, ap pr ov ed Ju n e 20 , 194 9, as am en de d

FE DE RA L C O M M U NIC A TIO N S CO M M IS SIO N

Section 1. Autho rity to delegate.— (a) In addition to its existing authority, 

the Fed eral Communications Commission, her ein after referr ed to as the “Commission”, shall have the autho rity to delegate, by published order or rule, any 

of its functions to a division of the Commission, an individual Commissioner, 

a hearing examiner, or an employee or employee board, including functions 

with respect to hearing, determining, ordering, certifying, repo rting or otherwise acting as to any work, business, or m atter: Provided, however, Th at 

nothing herein contained shall be deemed to supercede the provisions of section 

7( a) of the Adm inistrative Procedure Act (60 Stat. 241), as amended : And

provided further, Th at in accordance with the provisions of subsection (b) 

of this section the functions of the Commission with respect to the filing of 

exceptions to decisions of hea ring exam iners and the function of hea ring 

oral arguments on such exceptions before the e ntry of any final decision, order, 

or requirement as set forth in subsection (b) of section 409 of the Communications Act of 1934, as amended (66 Stat. 721), are hereby abolished.

(b) With respe ct to the delegation of any of its functions, as provided in 

subsection (a) of this section, the Commission shall retain a discretionary 

right to review the action of any such division of the Commission, individual 

Commissioner, hearing exam iner, employee or employee board, upon its own 

initiative or upon petition of a party to or an intervenor in such action, with in 

such time and in such manne r as the Commission shall by rule prescribe: 

Provided, however, That the vote of a majority of the Commission less one 

member thereof shall be sufficient to bring any such action before the Commission for review.

(c) Should the right to exercise such discretion ary review be declined, or 

should no such review be sought within the time stated in the rules promulgated by the Commission, then the action of any such division of the Commission, individual Commissioner, hea ring exam iner, employee or employee 

board, shall, for all purposes, including appe al or review thereof, be deemed to 

be the action of the Commission.

Sec. 2. Tra nsfer of functions to the Chairman.—There are hereby tra ns ­

ferred from the Commission to the Chairman of the Commission the function s 

of the Commission with respe ct to the assignment of Commission i>ersonnel, 

including Commissioners, to perform such function s as may have been delegated
REO RGANIZA TION PLA NS 1 AND 2 OF 1961 135

by th e Com miss ion to Co mm iss ion pe rson ne l, in cl ud in g Com m ission ers, p u rsu an t to se ct io n 1 of t his re org an iz at io n plan .

Sec. 3. R evie w st aff .— Th e review staff, cr ea te d by se ction 5 (c ) of th e Comm un ic at io ns Act of 1934, as am en de d (66 Sta t. 71 2), to get her w ith it s fu nctio ns , is he re by ab olishe d. The em ploy ees of such st af f m ay be as si gne d as 

th e Co mmiss ion m ay de si gn at e. ”

App en dix 5

Adm inistr at ive P rocedure Act

Sec. 7. In hear in gs which se ction 4 or 5 re quir es to be co nd uc ted pu rs u an t to 

th is s ec tio n—

(a ) P res idin g O ff ic er s.—T her e sh al l pre si de a t th e ta kin g o f ev iden ce (1 ) th e 

agency, (2 ) one or mor e mem be rs of th e body whi ch co mpr ises th e ag en cy , or 

(3 ) one or mo re exam in er s ap po in te d as pr ov id ed in th is A ct; bu t noth in g in 

th is Act sh al l be deem ed to su pe rs ed e th e co nd uc t of spe cified clas se s of p ro ce ed ­

ings in who le or p a rt by or be fo re boa rd s or oth er officers sp ec ia lly pr ov id ed fo r 

by or de si gn at ed p u rs u an t to st atu te . The fu nc tions of al l pr es id in g officers an d 

of officers p art ic ip ati n g in de cision s in co nf or m ity w ith section 8 sh al l be co ndu cted in an im p art ia l m an ne r. An y su ch offic er may a t any tim e w ithdra w if 

he de em s hi m se lf dis quali fi ed; an d, up on th e filing in goo d fa it h of a tim el y an d 

sufficie nt af fida vi t of pe rs ona l bi as or dis qu al ific at io n of any su ch officer, th e 

ag en cy sh al l de te rm in e th e m att er as a p a rt of th e re co rd an d de cision in th e 

case. * * *

Appen dix 6

Adm inist ra tiv e P rocedure Act

Sec. 6 (d ) Den ia ls .—Pro m pt no tic e sh al l be give n of th e den ia l in who le or in 

p a rt of an y w ri tt en ap pl ic at io n, pet itio n, or oth er re ques t of an y in te re st ed p erson mad e in co nn ec tio n w ith an y ag en cy proc ee ding . Exc ep t in affir ming a pri or 

de ni al or w he re th e den ia l is se lf-e xp la na to ry , such no tic e sh al l be ac co m pa nied 

by a simple s ta te m ent of p ro ce dura l or oth er gr ou nd s.

App en dix 7

Com mun icat ions Act of 1934, as A mended

Sec. 4. (f ) (1 ) The Co mm iss ion sh al l ha ve au th ori ty , su bje ct to th e pr ov isio ns 

of th e civil-s ervice laws and t he C lass ifi ca tio n Ac t of 1949, as am en de d, to a ppoin t 

su ch officers, en gine er s, ac co unta nt s, attorn ey s, insp ec to rs , ex am in er s, an d oth er 

em ploy ee s as a re n ec es sa ry in the exe rc ise of its fu nc tion s.

(2 ) W itho ut re gard to th e civi l-se rv ice laws, but su bje ct to th e Class ifi ca tio n 

♦ Act of 1949, ea ch co m m ission er m ay ap poin t a lega l ass is ta nt, an en gi ne er in g

ass is ta nt, an d a se cr et ar y, ea ch of wh om sh al l per fo rm su ch duties as such 

co mm ission er sh al l di re ct . In ad di tion , th e chai rm an of th e Co mmiss ion may 

ap po in t, w ithout re gard to th e civi l-s ervi ce laws, but su bje ct to th e Class ifi ca tio n 

r Ac t of 1949, an ad m in is tr ati v e ass is ta n t who sh al l per fo rm su ch dut ie s as th e

ch air m an s ha ll di re ct . * * *

(i ) The Co mm iss ion m ay per fo rm an y a nd al l ac ts, mak e su ch ru le s an d re gula tion s, an d issu e su ch or de rs , no t in co ns is te nt w ith th is Act, as m ay be ne cess ary in th e ex ec ut io n of its f un ct io ns .

(j) The Co mm iss ion m ay co nd uc t it s pr oc ee di ng s in su ch m an ner as w ill be st 

co nd uc e to th e pr op er dis pat ch of bu sine ss an d to th e en ds of ju st ic e. No comm ission er sh al l p art ic ip ate in an y heari ng or pr oc ee di ng in which he h as a 

pe cu ni ar y in te re st . An y p art y may ap pear be fo re th e Co mm iss ion an d be heard 

in pe rson or by at to rn ey. E very vo te an d official act of th e Co mm iss ion sh al l 

be ente re d of reco rd , and it s pr oc ee di ng s sh al l be pu bl ic up on th e re ques t of an y 

p art y in te re st ed . The Com miss ion is au th ori ze d to w ith hold pub lica tion of re cor ds or pr oc ee di ng s conta in in g se cr et in fo rm at io n af fe ct in g th e nati onal 

de fens e. ♦ * *
136 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

Appen dix 8

Administrative Order No. 11

Order D efinin g th e E xecutive R espo nsibility of th e Chairm an Wit h Respect

to th e I nternal Affairs of th e Comm ission

At a session of the Federal Communications Commission held at its offices in 

Washington, D.C., on the 25th day of April 1956:

In accordance with Section 5( a) of the Communications Act of 1934, as 

amended, which reads, in p a rt:

“The member of the Commission designated by th e President as C hairman 

shall be the chief executive officer of the Commission. It shall be his duty 

to preside at all meetings and sessions of the Commission, to represent the 

Commission in all ma tters relating to legislation and legislative reports except that any commissioner may present his own minority views or supplemental reports, to represen t the Commission in all ma tte rs requiring conferences or communications with oth er governmental officers, departm ents 

or agencies, and generally to coordinate and organize the work of the Commission in such a manner as to promote prompt and efficient disposition of 

all m atters within the ju risd iction of the Commission.”

the executive responsibility and autho rity of the Chairma n with respe ct to the 

inte rnal affairs of the Commission a re hereby defined.

A. In internal matters of a fairly routine character. As to these, the Chairman takes final action, need not rep ort specifically there on to the Commission, 

but fioin time to time advises the Commission in general of such actio ns taken. 

Illu strations of this type of ma tte r a re :

1. procurement and disposition of office spac e;

2. setting of prio ritie s in use of service facilit ies;

3. classification of positions up to and including GS-14;

4. approval of individual personnel action s affecting employees up to and 

including grade GS-9 or its equivalent, except involuntary separation s and 

actions affecting personnel employed in the immediate offices of Commissioners.

5. approval of minor and non-substantive changes in operatin g procedure, 

except changes which involve the protective provisions of the Communications Act or of the Administrative Procedure Act; and

6. promulgation of manuals and other procedural instruc tion s with respect to administrative matters.

B. In internal matters of a non-routine character which do not involve policy

determinations. As to these, the Chairman takes final action hut specifically 

advises the Commission of each action taken. Illustratio ns of this type of 

matt er a re :

1. making of work assig nments to the staff of a sub stantial and unusual 

nat ure ;

2. estab lishm ent of personnel ceilings or staffing sched ules;

3. installation or revision of sta tistical or reporting systems for administrativ e purpo ses ;

4. approval of individual personnel actio ns affecting employees in grades 

GS-10 through 14 or their equivalent, except involuntary separations and 

all actions affecting personnel employed in the immediate offices of Commissioners. Only those actions which affect grade, perm anent assignment, and 

professional qualifications are reported to the Commission on a case-hy-case 

ba sis;

5. approval of minor changes in organization within a bureau or staff 

office; and

6. approval of major changes in procedure except changes of a substan ­

tive natur e or which involve the protectiv e provisions of the Communications Act or the Adm inistrative Procedure Act.

C. In internal matters of an impo rtant character or which involve policy determinations. As to these, the C hairman develops proposals for presen tation to 

the Commission. All ma tte rs of this natur e originatin g with the staff or other 

Commissioners are addressed to the Commission through the Chairman. Illustrations'of this type of m att er are :

1. approval of budgetary requ ests to be subm itted to the Bureau of the 

Budget:

2. allotment of funds among purposes, bu reaus, and offices;

3. promulgation of form al personnel policie s;
REORGA NIZATION PLA NS 1 AND 2 OF 1961 137

4. approval of extraord inary assignments of personnel (e.g. details outside the agency) ;

5. approval of major changes in organization within a bureau or staff 

office and all changes affecting two or more bureaus or staff offices;

6. approval of changes in procedure of a substantive n ature or which affect 

the protective featu res of the Communications Act or the Administrative 

Procedure A ct;

7. approval of all involuntary separations of personnel; and

8. approval of actions affecting personnel at the grade GS-14 level and 

and above, except those actions affecting personnel employed in the immediate offices of Commissioners.

I). With respect to the personnel in Commissioner's offices. The individual Commissioners control appointments to and separations from such positions except that all such actions will be taken only after consultation with the Chairman or his designated representative to assure conformance with budget limitations, civil service regulations, and similar requirements.

JS. With respect to supervision of staff. On behalf of the Commission and pursuant to Section 5(a ) of the Act, the Chairman has responsibility and authority to supervise the staff of the Commission in its day-to-day activities. This authority does not involve in any way the content of policy recommendations or the 

Commission’s adjudicatory decisions.

F. Auth ority to delegate. To the extent he finds necessary or desirable the 

Chairman may delegate to appropriate officials performance of duties covered 

by this order.

G. Nothing in this order shall be interpreted to confer upon the Chairman any 

authority inconsistent with any laws, rules, or regulations governing personnel 

administration or other management matters.

H. This order rescinds and supersedes Administrative Order No. 8, dated 

June 2, 1949.

F ederal Com mu nica tion s Com m is si on , 

Mary J ane Morr is, Secretary.

App en di x 9

Adm inistr at ive P rocedure Act

Sec. 8. (b) Submittals and Decisions.—Prior to each recommended, initial, or tentative decision, or decision upon agency review of the decision of subordinate 

officers the parties shall be afforded a reasonable opportunity to submit for the 

consideration of the officers participating in such decisions (1) proposed findings 

and conclusions, or (2) exceptions to the decisions or recommended decisions of 

subordinate officers or to tentative agency decisions, and (3) supporting reasons 

for such exceptions or proposed findings or conclusions. The record shall show 

the ruling upon each such finding, conclusion, or exception presented. All decisions (including initial, recommended, or tentative decisions) shall become 

a p art of the record and include a statement of (1) findings and conclusions, as 

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

or discretion presented on, the record: and (2) the appropriate rule, order, sanction. relief, or denial therof.

f App en dix 10

Reorgan ization P lan No. 11 of 1950

P re p a re d by th e P re s id e n t a n d tr a n s m it te d to th e S e n a te a n d th e H ouse of R e p re se n ta ti v e s 

in C ongre ss ass em ble d, M arc h 13 . 19 50 , p u rs u a n t to th e p ro v is io n s of th e R eo rg a n iz a ti o n 

A ct of 19 49 , a p p ro v ed J u n e 20 , 19 49

FEDERAL COMM UN ICA TIO NS COMM ISSION

Section 1. Transfer of functions to the Chairman.— (a) Subject to the provi­ sions of subsection (b) of this section, there are hereby transferred from the 

Federal Communications Commission, hereinafter referred to as the Commission. to the Chairman of the Commission, hereinafter referred to as the Chairman. the executive and administrative functions of the Commission, including 

functions of the Commission with respect to (1) the appointment and supervision of personnel employed under the Commission, (2) the distribution of
13 8 REORGANIZATION PLANS 1 AND 2 OF 1961

business among such personnel and among administrative units of the Commission, and (3) the use and expenditure of funds.

(b) (1) In carrying out any of his functions under the provisions of th is section the Chairman shall be governed by general policies of the Commission and 

by such regulatory decisions, findings, and determinations as the Commission 

may by law be authorized to make.

(2) The appointment by the Chairman of the heads of major administrative 

units under the Commission shall be subject to the approval of the Commission.

(3) Personnel employed regularly and full time in the immediate offices of 

commissioners other than the Chairman shall not be affected by the provisions 

of this reorganization plan.

(4) There are hereby reserved to the Commission its functions with respect 

to revising budget estimates and with respect to determining upon the distribution of appropriated funds according to major programs and purposes.

Sec. 2. Performance of transferred functions.—The Chairman may from time v

to time make such provisions as he shall deem appropriate authorizing the performance by any officer, employee, or administrative unit under his jurisdiction 

of any function transferred to the Chairman by the provisions of this reorganization plan.

STA TEM ENT OF JOH N S. CROSS, COMMISSIONER, FEDE RA L 

COMMUNICATIONS COMMISSION

Mr. H arris. Com missioner Cross ?

Mr. Cross. Mr. Ch airma n an d gen tlem en, I do n ot have a pr ep ared 

sta tem ent bu t, with your permis sion, will speak fro m notes as I am 

accustom ed to doing.

I pe rso nally su pp ort th e reo rgan iza tio n plan .

Whil e I am no t a law yer, I just don’t see the g re at b ugaboos un de r 

the bed that some of my colle ague s ap pa re nt ly see in this pla n.

F ir st off, I wou ld po int ou t th at in the 3 y ears th at I have been a 

mem ber of th is Comm ission I ha ve never kn own of even one adjud icato ry case th at was decided on strictly par ty lines. Th e Commission 

ju st doesn’t o perat e t hat w ay.

Moreover, the Commission, in my opinion, could well use the flexibi lit y prov ide d in Re org aniza tio n Pl an No. 2 to speed up i ts processes.

In fac t, we ourselves hav e recommen ded changes in the Comm unicatio ns Ac t to pe rm it panels of Com mission ers to he ar ad judicatory 

cases wh ich now mu st be he ard by the fu ll C omm ission en banc.

In m y opinion, we have m ore due process t ha n any othe r reg ulato ry 

agency, an d we hav e just about rea ched the po int where we have so 

much due pro cess t hat we are too b usy to work.

For instan ce, in the ad judica tory cases, we mu st, as a full Com- *

mission, meet even the side inter loc uto ry ma tte rs. Unless the Commission were wi lling to abd icate its responsibilities to the Ch airma n,

I see no way fo r the Ch air man to us urp such res ponsibilities un de r

the pro posed reo rgan iza tio n plan. '

A t the presen t time whe n cases are rip e fo r he ar in g they are des igna ted by the Commission fo r he ar in g on specific issues approv ed by 

the Commission. At th at time the Com mission could, un de r the pr oposed reorganiz ati on p lan , ann oun ce by publishe d or de r th at this partic ular h ea rin g would be h eld by an exa miner , a single Comm issioner, 

a panel of several Com mission ers, or the full Com mission, wh ate ver 

the Commission wa nte d to do in t his specific case.

Suppose in a specific case the Commission decided th at it would 

hav e a panel of three Com mission ers he ar the case. Then, and only 

the n, co.ild the Ch air man desig nate by nam e which three Commission ers wou ld be assig ned to the pan el.
REORGANIZATION PLANS 1 AND 2 OF 19 61 139

Moreover, once these three Commissioners consider the case and 

render a decision, any three Commissioners, a majority less one, could 

compel a review of that decision by the full Commission.

Under these circumstances, it appears to me tha t the threat, if any, 

in regard to the Commission’s independence appears pretty far fetched 

and, even so, is offset by the proviso that any three Commissioners, a 

majority less one, can assure a review by the full Commission of any 

action taken under the delegated authority.

Then, too, there is also recourse to the courts which is in no way 

disturbed by the reorganization plan. So that, in my opinion, the 

litigants will still continue to get due process.

From what I gathered in listening to testimony and the questions 

before this Committee thus far, and in reading the separate views of 

my colleagues, there appears to be some misunderstanding of section I 

of the plan, tha t is the section giving the Commission authority to 

delegate.

This section, as I read it, merely gives the Commission the authority 

to delegate. It does not say that it. must delegate. Again, as I read it, 

the Commission, under this section could continue to operate just as 

it does now if it chose to do so.

On the other hand, i f it chose not to hear oral argument or to relieve 

the full Commission from hearing oral argument on exceptions and 

delegated this to a Commissioner or a panel of Commissioners it would 

have the authority under section I to do so.

It is my unde rstanding tha t it is this proviso on which the bar association bases its opposition, and it is easy to understand why they 

would oppose it, because this is taking away some of the due processes 

which, 1 understand, were put there at the express instigation of the 

lawyers.

Don’t get me wrong. I have many friends and acquaintances among 

the legal profession, and I have great respect for that profession but, 

as I told the Federal Communications Bar Association, sometime ago, 

asking them to assist the Commission in cutting out some of the redtape tha t goes under the name “due process,” is like asking the butcher 

to cut out the red meat department and sell only poultry and fish.

Ever since I became a Commissioner, and even during the previous 

years, I was dealing with communications before becoming a member 

of the Commission, and one of the most bitter complaints against the 

FCC was a seemingly interminable length of time it took to get. a 

decision out of it.

That complaint still exists. And, although our processes have 

speeded up some from what they were when I first became a Commissioner, there is still considerable room for improvement in our opinion.

Yet., when concrete suggestions are made to cut down on the very 

things tha t contribute to our considerable backlog, such as are made in 

the reorganization plan before us, we get a hue and crv from various 

sources which, in substance, says, “For mercy’s sake, don't do it this 

wa y; do it some other way.”

I would point out to you again that we ourselves at the Commission 

as recently as this year recommended changes in Communications Act 

which would permit a panel of Commissioners to hear adjudicatory 

cases, just as they can now hear other cases under the existing statutes.

I)o you think for 1 minute that the bar association is going to be
149 REORGANIZA TION PLA NS 1 AND 2 OF 19 61

any less opposed to our suggestion just because it came from the Commission ? I doubt it very much.

On first reading the plan I had some doubts about the wisdom of 

abolishing our review staff. My doubt-s in this regard were due to my 

fears th at such abolition would not only slow down our overall output 

markedly, but would also result in opinions and orders which were 

not as solidly based as our opinions and orders are now.

Our opinions and orders are issued on the basis of the majority vote 

and the individuals comprising the majority often arrive a t their decisions for different reasons.

Accordingly, welding the separate views into one majority opinion 

order takes expert draftsmanship and detailed knowledge of the 

record. If the Commissioners take on this job I feel reasonably sure *

they will do it well, but the extra burden thus placed on them is al- v

most certain to be reflected in a less overall output.

Moreover, it is only natural to expect th at a Commissioner, charged ,

with writing the opinion on a certain case, about which he has firm 

convictions, such as multiple ownership, trafficking, technical violations, excessive spot announcements, monopoly, antitrust, and so on, 

may tend to weave his own views into the doctrine.

This can lead either to excessive rewriting, when the majority reads 

his efforts, or to numerous separate opinions concurring in the results, 

all of which are time consuming.

In addition, with seven Commissioners writing opinions, there is 

a possibility that they will not always have the time for the extensive research necessary to base their opinions as solidly on past precedent as the review staff now does, since that staff is comprised of experts who spend full time in this field and do nothing else.

I realize only too well that the sentiment outside the Commission 

is overwhelmingly in favor of having the Commissioners write their 

own opinions and the tide may well be too strong to buck, however, 

it must be remembered that we are not a judicial body in the true sense 

of the word but are quasi-judicial, quasi-administrative, and quasilegislative.

So the rules tha t apply to us should be designed to fit our unique 

operations rather than having us conform to rules designed for general application or for others, regardless of how they fit us.

For example, the wide range of the Commission’s activities make it 

highly desirable to have engineers, accountants, broadcasters, communicators, and lawyers as members of the Commission instead of 

having only lawyers, which means th at under a stric t interpretation »

of the reorganization plan there will be nonlawyers writing legal 

opinions,

Moreover, despite any notions to the contrary, Commissioners are 

extremely busy people and handle a great amount of business moneywise as well as volumewise. I have heard it said th at a Commissioner 

handles more business moneywise in a year than an average Federal 

judge handles in a lifetime.

Accordingly, for these reasons and primarily in the interest of more 

production and, consequently, less backlogging, I would prefer to see 

us retain the review staff. However, I believe tha t my fears in this 

regard can be overcome within the framework of the reorganization 

plan; that is, a Commissioner who is assigned a particular case would
REORGANIZATION PLANS 1 AND 2 OF 19 61 141

avail himself of a review staff or the same people under a different 

name if he desired, who would write up the case in draft form with 

the assistance of the Commissioner’s legal assistant.

Then the Commissioner would review the dra ft in detail, correct 

it as he deemed it necessary, sign it, and submit it to his colleagues for 

approval.

It is my understanding tha t this procedure, while not exactly in 

accordance with the strict interpretation of the President's reorganization plan, would not violate it. Actually, I think this procedure would not reduce our overall output materially, and would 

strengthen our opinions and orders, because it is only reasonable to 

assume tha t any Commissioner who was personally signing an opinion and order would take considerable care to insure its correctness 

in every respect .

Moreover, I feel reasonably certain that by its own internal procedures, the Commission can adopt this type of procedure under the 

reorganization plan. Consequently, on this basis I am prepared to 

accept the abolition of the review staff.

In summation, Mr. Chairman, and gentlemen, I personally support 

the President’s reorganization plan for the Federal Communications 

Commission. I hasten to point out, however, that the views that I 

have expressed are my own but that is kind of redundant since you 

have heard the others yourself.

Thank you.

The Chairman. Mr. Rogers, did you have some questions of the 

Chairman ?

Mr. Rogers of Florida. Well, I think a number of them have been 

answered, Mr. Chairman.

STATEMENT OF HON. NEWTON N. MINOW— Resumed

Air. Rogers of Florida. I would like to ask just one question.

I wanted to make sure tha t I understood the Chairman’s position 

in the delegation of authority that before the Chairman could make 

any assignments an overall delegation of au thority would be required 

by the full Commission to the Chairman but it would not require 

specific delegations of authority as to panels and so forth or would it?

Mr. Minow. Well, it would be entirely up to the Commission, Mr. 

Rogers.

My understand ing of the plan is th at I, as Chairman, could delegate nothing, either generally or specifically, unless the Commission 

so authorized me to proceed.

Mr. Rogers of Florida. For instance, if they said, “Now we will 

give you authority to set up three panels,” is it your understanding 

tha t they could also delegate which members or would that be left 

to the discretion of the Chairman ?

ATr. Minow. As I understand it, under section 1, the Commission 

could make certain delegations of the kinds of areas of problems to 

be delegated. Then if it got to a panel under section 2, the Chairman would assign the makeup of the membership of the panels.

Air. Rogers of Florida. And now, one more question: Do I unde rstand it is your interpreta tion of the plan tha t anytime the full Commission desired they could review tha t delegation of authority and,
142 REO RGA NIZA TION PLA NS 1 AND 2 OF 19 61

if they so desired, revoke the delegation of authority and bring it 

back to the full Commission ?

Mr. Minow. Unquestionably, tha t is correct.

Mr. Rogers of Florida. Thank you, Mr. Minow.

Thank you, Mr. Chairman.

Mr. Bennett. If the Commission delegated to the Chairm an this 

authority and then afte r a month or two decided it was a mistake and 

then took action to rescind the delegation of authority, would that end 

the matter ?

I mean, could they do that ?

Mr. Minow. I believe so, sir; yes.

Mr. Bennett. Then the following day, if they wanted to they could 

redelegate it ? <

Mr. Minow. Right.

I think any----- b

Mr. Bennett. The au thority that the Commission has is a continuing authority tha t it can take or give, as it sees fit. Is that your *

understanding?

Mr. Minow. That is my und erstanding; yes, sir.

Mr. Thomson. Mr. Chairman, I would like to ask the Chairman of 

the Commission if he has a policy on acknowledging letters from 

Members of Congress ?

Mr. Minow. 1 do, sir. I try very hard to answer them as promptly 

as I can.

Did I miss one? I am very sorry if I did. I am not aware of it.

We have a rule in my office that we try to understand them every day.

We have a great number and if 1 missed one, I would be very glad if 

you would call it to my attention. I would be very apologetic.

Mr. Bennett. This is off the record.

(Off-the-record discussion.)

The Chairman. Air. Chairman, I would like to ask this question 

which, I think, is rather important:

Would the rule contemplated by this reorganization plan, section 

1(a) be one to which section 4 of the Administrative Procedures Act 

applies?

That is, would interested persons be afforded an op portunity to submit their views on the proposed rule ?

Air. AIinow. Well, I think it would be entirely up to the Commission to decide that, Air. Chairman.

If we wanted—if the Commission wanted to have a rulemaking on 

it, I think we could, or as the reorganization plan, you recall, used 

the words “by published order or rule,” I think it could be done either 

way, as the Commission saw fit.

The Chairman. In other words, tha t would be discretionary with I

the agency.

Mr. AIinow. That is righ t, sir. As a matter of personal opinion, 

if there were any major changes I thin k the sense of the Commission, 

certainly would be to interchain comments from all interested persons.

The Chairman. And it would not be necessary to hold hearings?

Air. AIinow. No, it would be up to the Commission to decide. It 

could be up for written comments of rulemaking or if it was, it 

would depend on the nature of it. But it would be up to the Commission to decide whether to do it or not.
REORGANIZATION PLANS 1 AND 2 OF 1961 143

The Chairman. There is some question about it which has been 

raised. In fact, a lot of questions have been raised in connection 

with this entire proposal tha t do not alfect other provisions of the 

act involved.

Are there any further questions before we dismiss the Commission ?

Thank you very much, Mr. Chairman.

Mr. Minow. We thank you.

Mr. Harris. We appreciate your cooperation.

We thank you and the Commission.

Mr. Minow. We th ank you, Air. Chairm an, and all of the members 

of the committee.

(Whereupon, at 4:05 p.m., the subcommittee adjourned subject to 

call of the Chair.)

o