Evening star., 1928-12-04
TEST CASE OF WGY
IN COURTS HANDS.
Counsel in Appeal From Radio
Ruling Have Twenty Days
to File Answers.
BY MARTIN CODEL.

1uS case VI w TX Is now III the
bosom of the court" but at least 90
days must elapse before the Court of
Appeals of the District of Columbia can
render decision in the most outstanding
suit yet undertaken against the Federal
Radio Commission, for counsel for both
sides have that much time to file sup
Elementary records. Probably a con-
siderably longer time will be taken by
the court, in view of the absence of
judicial precedents covering radio.
Along with the radio broadcasting
world, the newly convened Congress is
watching closely the progress of this
case. Senators and Representatives are
studying the action. not only because it
involves a test of the authority of the
Federal Radio Commission, but because
it opens the way to judicial interpreta-
ton of the radio act of 1927 It's out
come, particularly if it is carried later
to the Supreme Court of the United
States, may determine the course Con-
greSs may pursue in writing later legis-
lation.
A variety of legalis.'c interpretations
of radio was offered to the court by the
counsel in the case, in which Station
WGY, Schenectady, owned and operated
NY IlIC EJISCCILC w., ID
to restrain the commission from enforc-
ing its ALLEGATION order upon the sta
ton. Under the recent broadcasting
reallocation the Schenectady station is
obliged to sign off when it is sunset on
the Pacific Coast At that time an
other General Electric Station. KGO,
obtains exclusive use of the 790-kilo-
cycle channel-one Of the eight cleared
channels allotted under the equaliza-
ton plan to the far Western zone.
Asked New Wave Length.
Station WGY asked the commission
to allot different wave length to KGO
or grant WGY a channel equally as
desirable. Rather than follow the pre-
Scribed course of asking at a public
hearing for one Of the eight cleared
channels assigned to its zone, four of
which went to New York State, it chose
to fight the case in the court and OBJ
tain temporary injunction order about
a month ago. The test in the case is
whether the commission was acting
within its authority and within proper
discretion in placing WGY in the day
light" category. The test of the radio
act concerns the proposition of prop
erty rights in one and priority in the
other.
The theory was advanced by Charles
Evans Hughes, chief counsel for WGY,
that neither the United States nor any
State owns the ether. All that any one
can own is broadcaSting station that
uses the ether, he argued. If such
station can give service, it is unfair to
take its right away, the former chief
justice asserted. Arguing the merits of
the case, Judge Hughes declared that
WGY has clearly established its prop
erty rights in investing $1,500,000 in
its plant, expending $240,000 annually
in its operation, and proving its value
to the public by its wide range of pro-
gram service and to the radio science
by its pioneer experiments in broad
casting.
Judge Hughes intimated that the
property rights issue may lead the case
ultimately to the United States Supreme
Court. 1t is that issue upon which
Louis G. Caldwell. chief counsel for the
Federal Radio Commission, laid great
est stress. His contention is that there
are absolutely no property rights in the
ether and that the commissions licens-
ing and regulating authority gives it
sole discretion concerning who shall use
the ether channels.
Destroys Reception.
The commissions stand is fortified
by Attorney General Sargent's assign
men of Bethuel M Webster, one of his
assistants, to appear for the commits
sion. He told the court that the De-
partment of Justice was intervening be-
cause it regarded the action of the sta
ton as an improper infringement of
interstate commerce. He said its oper-
alton in violation of its assignment is
tending to destroy reception through
out the country.
Politics was naturally brought into
the case. One of the features of the
argument was the charge by Frank
Hogan, Washington counsel for WGY,
that the Schenectady station was
forced to seek the legal avenue of re-
dress because 'political-minded men,
bers of the Radio Commission would
agree only to 40 cleared channels for
the basic reallocation, whereas SO to so
were recommended by leading engi-
neers. Station WGY was arbitrarily
picked out as victim, he said.
Trust" prejudice was kept out of the
issue, although Attorney Caldwell init
mates that the commission regards it
unfortunate that one of the leading
benef1ciaries from radios boom should
be the first to seek to destroy an effort
to provide better radio reception for the
country at large. He is trying to get
the recent injunctive order vacated, and
wants the case dismissed from the
courts for want of jurisdiction and for
the stations failure to file its appeal
within the required 20 days limit. The
WGY case was appealed without notice
only two days before the reallocation
was to go into effect
The court must consider Mr.. Cald-
wells motions before entering upon the
merits of the case If it denies the
motions and rules upon WGY merits.
some of the first precedents in radio
law will be written upon the statute
books.
In the meantime both WGY and
KGO are operating on the 790-kilo-
cycle eaannel at night by virtue of the
temporary restr/lin- order, and they
are inevitably interfering with each
other. The heterodyne whistles on that
channel are reported mainly from Ok
lahoma. Colorado and Texas. while a
relatively low beat is reported on that
wave just west of Chicago.
Copyright, 1928, by North American