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cast radio services. Illustrative of this growth is the fact that the number of stations in the Safety and Special Radio Services alone has more than doubled since 1949, and there are now more than 300,000 stations in such services. It is also significant that in a great many instances radio is not the principal business of the licensee, but is merely an adjunct to his regular business activity. Such licensees have been found less likely to appreciate the necessity for complying with the Commission's rules. This has resulted in a steadily increasing number of violations of the Commission's rules by stations in these services.
To a large extent these violations have been, on an individual basis, relatively minor in nature. However, the cumulative effect of these thousands of violations has been to impair the orderly use of the radio spectrum, and in certain services, such as the marine service, to create a definite menace to the safety of life and property.
The Commission has found that its existing sanctions are inadequate to handle the situation which confronts it. These existing sanctions, such as criminal penalties, revocation of licenses and issuance of cease and desist orders are normally too drastic for the relatively minor types of offenses involved, and too cumbersome and time-consuming considering the multitude of violations that occur. In aggravated cases these more drastic sanctions are, of course, available for use. However, the Commission is reluctant in any event to take action which will result in depriving a licensee of radio when it is being used for safety purposes, such as on an aircraft or a ship.
It is our opinion that the imposition of a small monetary forfeiture is the type of sanction which is particularly appropriate to handle the multitude of minor violations with which we are confronted. Such forfeitures can be imposed promptly, and we believe that they will be effective in impressing upon licensees the need for strict compliance with the Commission's rules. Congress has recognized the need for this type of authority and has given it to various Government agencies. Thus, Congress has made a broad provision for civil penalties for violations of the Civil Aeronautics Act and certain regulations issued under that act (49 U S. C. sec. 621). And see, also, 8 U. S. C. section 1321 et seq. (aliens and nationality) ; 46 U. S. C. section 526 (0) and (p) (motorboats) ; 49 U. S. C. section 181 (b) (aircraft) ; 49 U. S. C. section 322 (h) (motor carriers); and 49 U. S. C. section 621 (inland waterways and air carriers). Moreover, Congress has already given such authority to this Commission, with respect to those ships which are required to carry radio equipment pursuant to the provisions of part II of title III of the Communications Act of 1934.
The Commission has given careful consideration to the criticism leveled at its original proposal because of the fact that it applied to violations of all of its rules and regulations. We believe that this criticism can be obviated while still meeting the need for effective enforcement of the Commission's rules. Thus, the revised proposal would give the Commission authority to impose monetary forfeitures only with respect to specified offenses which are all clearly enumerated in the statute. The statute itself will readily apprise any radio licensee or operator of the precise violations which will result in liability for a forfeiture. These specific offenses are all directly related to the actual operation of the radio stations and encompass those violations which could result in serious danger to life and property.
There have also been various criticisms of the procedural aspects of the Commission's proposal, particularly of the fact that there was no provision for notice to the violator prior to the time he becomes liable for the forfeiture. Therefore, it is proposed that the statue specifically provide that no one shall become liable for a forfeiture until he has been notified in writing of apparent liability for the forfeiture and been given an opportunity, either in writing or at an informal conference, to show why he should not be liable for the forfeiture.
It is believed that it would be helpful to a thorough understanding of the Commission's proposal to set forth the procedure which the Commission intends to follow if this legislation is enacted.
If an apparent violation of one of the rules encompassed by this legislation is discovered by one of the Commission's field personnel (who are employees of the Field Engineering and Monitoring Bureau), a written notice of apparent liability for a forfeiture will be given in person or sent by registered mail to the person who appears to have committed the violation and to the licensee of the station involved. This notice will inform the recipient of the reasons why it appears he is subject to the penalty, and advise him that he has the right to file a written statement.
In setting forth the reasons why he is not liable for the penalty, or if liable, why it should be remitted or mitigated. The recipient of the notice would also
be advised that he could request a conference with the Commission's regional manager or engineer in charge of the nearest field office of the Commission's Field Engineering and Monitoring Bureau. Any written defense or request for remittance or mitigation of the forfeiture, together with the report of any con: ference that might be held, would be reviewed by the Chief of the Safety and Special Radio Services Bureau or the Chief of the Common Carrier Bureau (depending on the particular radio service involved), who would have authority to decide if the person is liable for the forfeiture and if remission or mitigation of the forfeiture is justified. After being informed by registered mail of the action of the Bureau Chief, the violator would have the right to request the full Commission to review the action of the Bureau Chief (see sec. 5 (d) of the Communications Act). Upon such review, the Commission would have full authority to affirm, reverse or alter the decision of the Bureau Chief.
If, after the Commission's decision, the violator did not pay the amount finally assessed within 30 days, the case would be referred to the local United States Attorney to institute suit in a United States district court to recover the full amount of the statutory forfeiture. In any such suit, there would be a trial de novo of the case.
This procedure makes clear that notice would be given before anyone could become liable for a forfeiture, and that one individual or even one bureau of the Commission would not function as “policeman, prosecutor, and judge.” Moreover, there would be available an appeal to the full Commission before any payment would have to be made and the full Commission would have complete authority to review all of the facts and make proper disposition of the case. If the violator continued to dispute the Commission's finding of liability for a forfeiture, he would be entitled to a full evidentiary hearing by a court. It is the Commission's considered opinion that these procedures provide maximum safeguards against any possible abuses in implementing the proposed sanction, and obviate the fears that were expressed concerning the possibilities of arbitrary action.
There has also been certain criticism of the fact that the bill provides that the forfeiture shall be “in addition to any other penalty prescribed by law." This provision has been included, however, in order to be consistent with the existing forfeiture provisions of the Communications Act. Thus, Congress has provided that the forfeiture prescribed by section 364 of the act shall be "in addition to the penalties and forfeitures provided by title V of this act.” Moreover, section 501 imposes criminal penalties for violations of the Communications Act for which no penalty "other than a forfeiture is provided.” As a matter of administrative policy the Commission has not and would not, except for most compelling reasons, impose a monetary forfeiture and also seek criminal sanctions for the same violation. However, if Congress determines as a matter of policy that this proposed section should require the Commission to elect in any given case whether to proceed by way of monetary forfeiture or criminal sanction, the Commission would have no objection to having such a requirement written into the proposed amendment. In no event, however, do we believe that either the imposition of a monetary forfeiture or criminal prosecution should preclude the Commission from considering the violation in connection with its licensing function, e. g., in renewal or revocation proceedings. For a violation or a series of violations may raise serious questions concerning a person's qualifications to continue as a licensee.
Finally, the Commission wishes to reiterate as forcefully as possible its view that the requested authority is urgently needed to cope with a dangerous situation that is steadily growing worse. Moreover, we believe that the revised proposal, narrower in scope and specific in application, coupled with the procedural safeguards which we have outlined minimizes any possibility of abuse. Proposed revision of S. 1548
(1) Strike out the heading of section 503 of the Communications Act and insert in lieu thereof “Forfeiture in cases of rebates and offsets and of violations of rules and regulations."
(2) Redesignate section 503 as section 503 (a) and add the following:
“(b) Where any radio station, other than licensed radio stations in the broadcast service or stations governed by the provisions of part II of title III of this Act
(1) is operated by any person not holding a valid radio operator license or permit of the class prescribed in the rules and regulations of the Commission for the operation of such station;
(2) is operated without identifying the station at the times and in the manner prescribed in the rules and regulations of the Commission;
(3) transmits any false call sign;
(5) transmits unauthorized communications on any frequency designated as a distress or calling frequency in the rules and regulations of the Commission;
(6) interferes with any distress call or distress communication ;
(7) fails to attenuate spurious emissions to the extent required by the rules and regulations of the Commission;
(8) is operated with effective radiated power in excess of that authorized ;
(9) renders a communication service not authorized for the particular station ;
(10) is operated with a type of emission not authorized ;
(11) is operated with transmitting equipment other than that authorized; The person or persons operating such station and the licensee of the station shall, in addition to any other penalty prescribed by law, each forfeit to the United States the sum of $100.00.
(c) No person shall become liable for the forfeitures provided for in this section except after he has received written notice in person or the Commission has sent him written notice by registered mail at his last known address, setting forth the facts which indicated apparent liability, and he has had an opportunity to show cause in writing why he should not be held liable. Upon request of the person notified of apparent liability, he shall be afforded an opportunity for a personal interview with an official of the Commission at the district or regional office of the Commission nearest to the person's place of residence.
(3) In section 504 (b) strike out “and section 507" and insert in lieu thereof "section 503 (b), and section 507."
Mr. WEBSTER. I apologize, sir, for not knowing more about this.
I was under the impression, and I guess I got it from somebody telling me about that letter, that it would not come up.
Mr. HARRIS. That is perfectly all right, just so we understand what it is. Mr. WEBSTER. I agree
you. This, to me, is a very important bill and I would like to see the philosophy of this enacted because I am very much concerned.
Mr. HARRIS. I assume that is the attitude of the entire Commission in submitting the proposed legislation?
Mr. WEBSTER. It certainly is.
I have taken some personal interest in this enforcement problem, and I personally want to see it through also.
Mr. Harris. We will be looking forward to getting this additional information in the next few days.
Finally, we have H. R. 6631.
I might say that, as I understand, this is a bill that is sponsored by the Judicial Conference of the United States judges; is that not true?
Mr. BAKER. That is the bill on which I was scheduled to testify. It is a companion bill and a duplication of Senate bill 2128. It was proposed by the Judicial Conference.
It affects, to a rather small degree
Mr. FLYNT. Is that the Judicial Conference that is composed of the senior circuit judge and has no connection, except on a higher echelon; with the judicial conferences held within the circuits?
Mr. BAKER. That is correct.
Mr. BAKER. We have submitted our comments to the committee and I assume they will be made a part of the record. They were submitted as a duplicate of what was submitted to the Senate and they apply
equally to the bill which is identical to that introduced in the Senate.
As the committee may know, two provisions of the Communications Act relate to the appeal of orders of the Federal Communications Commission, section 402 (a) and 402 (b). Section 402 (a) cases are handled in accordance with the Judicial Review Act of 1950.
There is a difference between the two procedures, in that under section 402 (b) there is a requirement of a specific period of time of notice before interlocutory action can be taken by a court.
The Judicial Review Act has a mandatory 5-day period of notice required to the Communications Commission and to the district attorney.
The Judicial Conference has proposed to eliminate that mandatory 5-day period and substitute instead "after reasonable notice.”
It has been our experience with the various courts that there may be times when it is desirable for them to be in a position to act in less than 5 days, and certainly we cannot complain if we are given reasonable notice and an opportunity to appear.
So the Commission has no objection to the adoption of this amendment which was proposed by the Judicial Conference.
Mr. HARRIS. Thank you very much.
There is one on which there seems to be apparently agreement. Were there any questions?
I might note that we have a letter addressed to the chairman of the committee, Mr. Priest, from Mr. Henry T. Chandler, director of Administrative Office of the United States Courts, advising that Circuit Judge Albert B. Maris, chairman of the Committee of the Judicial Conference, which recommended this bill, is out of the country at the present time and desires an opportunity to make a statement, I believe. He desires to appear at a later date.
Of course, that privilege will be granted.
Mr. HARRIS. Does the Commission have any further recommendations with reference to the changes to the Communications Act of 1934?
Mr. BAKER. I do not think there are. However, as you recall, you stated yesterday that you wanted some comments in relation to the resolution introduced by this committee with relation to the tall towers, and Commissioner Lee is available here to comment on that, sir.
Mr. HARRIS. I am aware of that.
Yesterday I did announce that Mr. Salant, of the Columbia Broadcasting System, would be permitted to testify today.
We have consumed the greater part of the morning already. I am advised that he must leave the city today and I am fearful, if we get into this other matter, that it will take longer than time will permit.
Mr. Salant, how much time will you require?
Mr. SALANT. Sir, I am afraid that this is an important bill to us, and if necessary, I can stay over if it suits your convenience.
Mr. HARRIS. We do not want to inconvenience anyone any more than we can possibly help. We would like an opportunity to get the Commission and the staff present back to their duties downtown.
We have been highly critical on occasions heretofore about their not deciding certain cases and performing certain duties and responsibilities within a certain time, and we are not going to hold them here any longer than we have to.
Mr. SALANT. I would hate to interfere with their expedition, sir.
Mr. HARRIS. If that is permissible with you then, Mr. Commissioner, we would be glad to have you come around and we will take up
this matter of towers.
Mr. LEE. Mr. Chairman, the Commission submitted comments adopted_April 6, 1955. I will not burden you with reading those again. I would like to submit them for the record. Mr. HARRIS. This is House Joint Resolution 138 and 139 ? Mr. LEE. That is right, sir. That would, in effect, limit by legislation the height of radio towers. Mr. HARRIS. Yes. That information will be made a part of the record.
(The information referred to was inserted with the report of the Commission on this legislation.)
Mr. LEE. We felt that existing procedures, since the industry itself was participating—that is, the aviation industry, had worked rather well.
Further, we felt that since we recognized that a problem was in existence and had taken it up through the Air Coordinating Committee, that perhaps further consideration of legislation of this type might be deferred pending the conclusion of these hearings.
Now, this particular committee was chaired by myself and the Administrator of the CAA. The Chairmen there were known as Lee and Lee at that time.
We set up a subcommittee of experts, we had numerous meetings, we spent a great deal of time on it, and I am prepared to say that I learned a great deal and I think the aviation people did, too.
As far as I am concerned, I would recognize the problem. I took rides in airplanes and when you look at these very tall structures and you are in a plane, you can understand that there is a problem. If you do not see it and you know it should be there, it is a matter of concern.
On the other hand, I think that the aviation people learned that through our processes, or, rather, because of our processes, it would be very difficult for us to turn down an application on the rather obscure reason that the tower is a “mental hazard,” which I think is the term generally used.
Mr. H TSHAW. It is a lot more than a mental hazard when somebody runs into it.
Mr. LEE. I appreciate that but there have been relatively few accidents on the high towers.
As a matter of fact, only one which concerned a tower over 500 feet that I know of.
On the other hand, we have faced right up to it in several cases where the applicant comes in and he wants a tower. I think we have four cases in hearing—Enid, Okla.; Selma, Ala.; Peoria, Ill., and Roswell, N. Mex. He comes in with his application and says that he needs a tower of a certain height. He needs that tower because otherwise he cannot get the coverage that will support his station, and that will give service to the rural area that otherwise might not get it.
In our processes, because of the Administrative Procedure Act, in a situation like that we cannot say, “You cannot have the tower because it is an air hazard."
In other words, we must be more specific and permit this applicant to appear in a hearing, which we have done in 3 or 4 cases, at which