Communications Act of 1934 to provide for monetary forfeitures in the case of violations of the Federal Communications Commission's rules and regulations relating to radio stations other than broadcast stations. This Office would have no objection to the enactment of this measure. HAROLD PEARSON, Hon. J. PERCY PRIEST, FEDERAL COMMUNICATIONS COMMISSION, Chairman, Committee on Interstate and Foreign Commerce, House of Representatives, Washington, D. C. DEAR CONGRESSMAN PRIEST: Thank you for your letter forwarding a copy of H. R. 5613, a bill to amend the Communications Act of 1934 to provide for monetary forfeitures in the case of violations of the Federal Communications Commission's rules and regulations relating to radio stations other than broadcast stations. As you know this proposed legislation was initiated by the Commission and its enactment recommended in our letter of March 8, 1955, to the Speaker of the House. It was also discussed with your committee at the April 13, 1955, briefing conference. The Commission is heartily in favor of H. R. 5613, and we hope that the bill will receive early and favorable consideration by your committee. The Commission will be pleased to attend and participate in hearings and to assist your committee in any way that we can with respect to the proposed legislation. Sincerely yours, Hon. SAM RAYBURN, GEORGE C. MCCONNAUGHEY, Chairman. FEDERAL COMMUNICATIONS COMMISSION, DEAR MR. SPEAKER: The Commission wishes to recommend at this time for the consideration of the House of Representatives the enactment of legislation amending the Communications Act of 1934, as amended, to provide a small civil penalty for violation of the rules and regulations of the Commission applicable to all radio stations other than those in the broadcast services, and to further provide for remission or mitigation thereof by the Commission. This same request has been submitted by the Commission to previous Congresses, but the provision has been enacted into law. However, the problems which originally prompted the Commission to request this authority have assumed such proportions and such seriousness that the Commission believes that the enactment of this proposal is absolutely essential in order to insure the continued orderly functioning of the nonbroadcast radio services, particularly those which have a direct impact on the protection of life and property. There has been a rapid and phenomenal expansion in the nonbroadcast radio services since World War II due largely to the development of new equipment and the utilization of new portions of the frequency spectrum. Many small companies have been licensed to operate radio stations as specialized common carriers, particularly in the mobile common carrier services established in 1946. An even greater expansion has taken place in what are known as the safety and special radio services where radio is employed for numerous diverse purposes by large groups of users such as the maritime and aviation interests, police and fire departments, electric and gas companies, forestry agencies, taxicab companies, highway truck and bus companies, etc. As of January 1, 1954, the number of radio stations in the safety and special radio services alone, exclusive of amatuer and disaster communications stations, had risen to 145,975, an increase of over 100,000 stations since 1947. One result of the extensive increase in licensed stations in recent years has been a marked increase in the number of violations of the Commission's technical rules and regulations. This is particularly true in some of the newer private services where radio is not the principal activity of the licensee but is utilized as an adjunct to his primary business activities, and the station operators are accordingly less concerned with the necessary for adhering to the technical rules governing the use of radio. Most of the offenses are, taken individually, of a comparatively minor nature. Collectively, however, because of their number and variety they represent a very real menace to the orderly use of the radio spectrum and to efficient and effective regulation by the Commission. In addition, these violations result in a serious menace to life and property in those services, such as maritime and aviation, where radio serves as a vital and necessary safety device. Thus, a special survey conducted for a limited period during 1950 revealed that 75 percent of the ship radio stations inspected abroad small vessels failed to comply with one or more of the rules governing the ship service. The seriousness and magnitude of the problems presented can best be illustrated by the situation that now prevails with respect to small boats equipped for radiotelephone communications and operating in the 2-3 megacycle band. Over the past few years there has been an increase of approximately 400 percent in the number of such small boats equipped for radiotelephone communications. This increase has, in turn, increased the problems of enforcing the Commission's rules. With respect to the small boats, one of the focal points of the Commission's difficulties is the fishing fleets operating off the coasts of the Gulf States and in Mexican territorial waters. In this area the Commission has been plagued by a constantly increasing number of violations of its rules, involving transmissions on unauthorized frequencies, malicious jamming of channels and the transmission of profane language. For example, in April 1954, two Commission field engineers conducted monitoring operations for 12 days while abroad a fishing boat off the Mexican coast. During that period they observed a total of 291 violations of the Commission's rules. Most serious of the violations occurring in the gulf area is the widespread misuse of the frequency 2182 kilocycles, which has been designated by international treaty to be a distress frequency. It is essential, of course, that a distress frequency be kept clear of all routine communications. However, in the gulf area the frequency 2182 has been misused for nonessential communications to such a degree that it has been rendered practically useless for safety purposes. Instances have occurred when ships and the Coast Guard have been unable to receive emergency distress calls on 2182 kilocycles because of the volume of illegal transmissions on the channel. The Commission believes that this situation presents a definite menace to the safety of life and property, and one which is steadily growing worse. Moreover, situations of a similarly serious nature are occurring in other parts of the safety and special radio service, such as the aeronautical service. Unfortunately, however, the Commission does not presently have available any adequate sanction for dealing effectively with this mass of rule violations in the nonbroadcast services. The Commission is authorized to revoke the licenses of stations willfully or repeatedly violating the rules, but even where the seriousness of a particular offense or the substantial number of separate offenses might otherwise warrant resort to this extreme sanction, it will often be particularly inappropriate in the nonbroadcasting services where, as in the case of a ship or plane station, the effect of the revocation would be to deprive the licensee of essential safety equipment or, in the case of a common carrier, to deprive the community of much needed communications service. Similarly, the Commission is authorized to refer aggravated cases of willful or knowing violations of its rules to the Department of Justice for criminal prosecution as a misdemeanor. But, especially since most of the minor violations result from negligence and disinterest rather than willful disregard for the Commission's rules, resort to the criminal sanction can only hope to be of limited value in the Commission's overall enforcement program. During the 82d Congress, there was enacted a series of amendments to the Communications Act of 1934, including a provision, incorporated in the act as section 312 (b), authorizing the Commission to issue cease-and-desist orders directed against any person violating the act or the Commission's rules and regulations. And the grant of this additional authority to the Commission was advanced by the conferees on this bill as the reason for their elimination of a provision, applicable to all radio services, permitting the imposition of forfeitures of up to $500 for violation of the act or the Commission's rules which had been included in the House version of the bill. But while the new cease-and-desist authority has proven of real value in certain areas of the Commission's enforcement program, our experience indicates that the cease-and-desist procedure is ill-adapted to dealing with the great increase in minor technical violations of the Commission's rules in the common carrier and safety and special radio services. Our records indicate that violations on the part of a particular operator may be many and varied and may occur over a considerable period of time. Generally, these violations are clearly established and present no dispute as to the facts or law. The cease-and-desist procedure, which is most useful when directed to a single or continuing situation or practice concerning which there may be disagreement as to facts or interpretation of rule or statute, would appear to be illadapted as a means of discouraging such clear-cut violations. Moreover, a cease-and-desist order is directed only at a particular violation, and, while possibly effective in causing the particular operator to strive to avoid repetition of that particular violation, would not, it is believed, be of any lasting value in stimulating the operator to live up to the Commission's rules in all aspects of his operations. On the other hand, it is thought that knowledge on the part of the licensees that any violation could lead to the prompt imposition of a money penalty, even though it be a small one, would be quite effective in creating an attitude of responsibility for compliance with all regulations. The cease-and-desist procedure is also believed to be too cumbersome and timeconsuming for the quick and efficient enforcement procedures desired in dealing with the multitudinous violations occurring in the nonbroadcast services. Even where the offense is clearly willful, or involves questions of "public health, interest, or safety," so as to make unnecessary the requirement of section 312 (d) of the act of first calling the offense to the attention of the licensee and affording him an opportunity to comply with the particular provision of law which has been violated, a show-cause order must first be issued affording the licensee involved a period of at least 30 days from the time of receipt in which to reply and, if desired, request a hearing. Furthermore, the ultimate penalties which must be relied on to make the cease-and-desist orders effective remain either license revocation or criminal prosecution, which, as has been pointed out, are usually inappropriate for the types of violation by radio licensees found in the common carrier and safety and special radio services. A study has been conducted of enforcement methods utilized by the Coast Guard and Civil Aeronautics Administration, both of which have regulatory; jurisdiction over large groups of persons involving the traffic law types of violations which are so common in the nonbroadcast services administered by this Commission. Both the Coast Guard and the C. A. A. are authorized to impose administratively, a civil penalty with further authority to remit, mitigate, or compromise the amount of such penalty. If payment is not made, the matter is referred to the Attorney General for collection in a noncriminal proceeding. Both agencies have had considerable success for many years in employing this method to secure compliance with their respective regulations. Information obtained from these agencies indicates that comparatively small individual average amounts of civil penalties are assessed, and that in only a small number of instances has it been found necessary to call upon the Attorney General for collection. It is the opinion of the Commission that similar enforcement procedure should be made available for use in the nonbroadcast services. A like procedure now exists under title III, part II of the Communications Act with respect to the larger oceangoing vessels subject to those provisions. This procedure has proven to be most successful with respect to enforcing the provisions of the Commission's rules applicable to such vessels. Extension of such a procedure to all nonbroadcast licensees would, it is believed, aid greatly in the task of regulating the many thousands of such licensees. While the provisions applicable to vessels provide for a forfeiture of $500 for each day during which a vessel is navigated in violation of law, the Commission believes that the sum of $100-noncumulative for any violation of the Commission's rules in the common carrier and safety and special services field would be sufficient to accomplish the purpose for which it is intended. The mitigation and collection provisions applicable under title III, part II of the Communications Act would, however, be equally applicable to the new forfeitures. Upon discovery of a violation, the licensee would be notified of the forfeiture incurred because of such violation and of his rights to apply to the Commission for remission or mitigation or to refuse to pay and be brought into court for a judicial determination of his liability. Any forfeitures collected by the Commission would be payable into the Treasury of the United States as provided by section 504 (a) of the Communications Act. It is believed that the ability of the Commission to mitigate the forfeiture would, in these cases as it does in the ship cases, encourage payment without the necessity of the Attorney General bringing a judicial proceeding for recovery. It is, therefore, recommended that the Communications Act be amended as follows: 1. Under title V, change subtitle "Forfeiture in cases of rebates and offsets" to read "Forfeiture in cases of rebates and offsets and violations of rules and regulations." 2. Redesignate section 503 as section 503 (a) and insert a new subsection (b) to read as follows: "(b) Any person who violates any rule or regulation made by the Commission under this Act to govern any radio station, except licensed radio stations in the broadcast services, and the licensee of any such radio station at which such violation occurs, shall, in addition to any other penalty prescribed by law, each forfeit to the United States the sum of $100." 3. Amend section 504 (b) by revising the phrase in the first sentence thereof "The forfeitures imposed by part II of title III and section 507 of this Act ***" to include a reference to section 503 (b) so that it would read as follows (new language in italic): "The forfeitures imposed by part II of title III, section 503(b) and section 507 of this Act shall be subject to remission or mitigation by the Commission, upon application therefor, under such regulations and methods of ascertaining the facts as may seem to it advisable, and, if suit his been instituted, the Attorney General, upon request of the Commission, shall direct the discontinuance of any prosecution to recover such forfeitures: Provided, however, That no forfeiture shall be remitted or mitigated after determination by a court of competent jurisdiction." The Commission considers the enactment of this legislation to be of the utmost importance for the proper enforcement of the Commission's rules and regulations, and to insure that radio can continue to serve effectively as a vital means of protecting life and property. It is therefore hoped that this proposal will receive early and favorable consideration by the House of Representatives. The Commission will be glad to furnish any additional information that may be desired by the House of Representatives or by any committee to which this proposal is referred. The Bureau of the Budget has advised the Commission that it has no objection to the submission of this letter. By direction of the Commission : GEORGE C. MCCONNAUGHEY, Chairman. FEDERAL COMMUNICATIONS COMMISSION, Hon. OREN HARRIS, Chairman, Subcommittee on Transportation and Communications, House of Representatives, Washington, D. C. DEAR CONGRESSMAN HARRIS: In discussing the hearings which are scheduled before your subcommittee on January 31, 1956, your subcommittee staff suggested the possibility of hearings being held at that time on H. R. 5613, a bill to amend the Communications Act of 1934 to provide for monetary forfeitures in the case of violations of the Federal Communications Commission's rules and regulations relating to radio stations other than broadcast stations. As you know, the amendments to the Communications Act contained in H. R. 5613 were proposed by the Commission as part of its legislative program. A similar bill, S. 1549, was introduced in the Senate, and the Senate Committee on Interstate and Foreign Commerce conducted hearings on the bill. As a result of these hearings in the Senate, the Commission is now extensively revising its proposal with respect to the authority to impose monetary forfeitures. It is expected that this revision will be forwarded to the House and Senate committees in the near future. Therefore, while the Commission appreciates the opportunity offered by your subcommittee to hold a hearing on H. R. 5613, we do not believe that the hearing should be held at this time in view of the extensive revision of the Commission's proposal which is now being prepared. The Commission hopes, however, that your subcommittee will be able to hold hearings on this important legislation after our revision is submitted for your consideration. The Commission sincerely appreciates your cooperation in this matter. GEORGE C. MCCONNAUGHEY, Chairman. (NOTE. Further comment on this legislation was received from the Commission and appears on p. 144.) [H. R. 6631, 84th Cong., 1st sess.] A BILL To provide for reasonable notice to the agency of applications to the courts of appeals for interlocutory relief against orders of the Civil Aeronautics Board, the Federal Communications Commission, the Secretary of Agriculture, the Federal Maritime Board, and the Atomic Energy Commission Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the second sentence of subsection (d) of section 1006 of the Civil Aeronautics Act of 1938 (52 Stat. 1024; 49 U. S. C., sec. 646), as amended, is further amended to read as follows: "Upon good cause shown and after reasonable notice to the Board, interlocutory relief may be granted by stay of the order or by such mandatory or other relief as may be appropriate.". SEC. 2. The third sentence of subsection (b) of section 9 of the Act of December 29, 1950 (64 Stat. 1132; 5 U. S. C., sec. 1039), is amended to read as follows: "In cases where irreparable damage would otherwise ensue to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than sixty days from the date of such order pending the hearing on the application for such interlocutory injunction, in which case such order of the court of appeals shall contain a specific finding, based on evidence submitted to the courts of appeals, and identified by reference thereto, that such irreparable damage would result to petitioner and specifying the nature of such damage.”. Hon. J. PERCY PRIEST, CIVIL AERONAUTICS BOARD, Chairman, Committee on Interstate and Foreign Commerce, House of Representatives, Washington, D. C. DEAR PERCY: This is in further reply to your letter of June 3, 1955, acknowledged June 10, 1955, requesting a report on H. R. 6631, a bill to provide for reasonable notice to the agency of applications to the courts of appeals for interlocutory relief against orders of the Civil Aeronautics Board, the Federal Communications Commission, the Secretary of Agriculture, the Federal Maritime Board, and the Atomic Energy Commission. H. R. 6631 would amend section 1006 (d) of the Civil Aeronautics Act by striking out the present provision that 5 days' notice be given to the Board before interlocutory relief from its orders may be granted and by substituting the requirement of "reasonable" notice. The bill also amends in a similar manner subsection (b) of section 9 of the act of December 29, 1950 (which provides for the review of the orders of certain agencies). The purpose of the amendments is to allow the courts of appeals to act with sufficient promptness in urgent cases. The Board believes that the deletion of the 5-day-notice requirement is unnecessary and prefers that this provision remain in the statute. There are several reasons for this position. First, the Board understands that the courts feel free to stay on less than 5 days' notice, those orders which are immediately effective upon release, or within a few days thereafter. In addition, the Board has never, in fact, objected to the entry of a temporary restraining order on grounds of lack of the 5-day notice in such cases, and hence no problem has arisen in this connection. Second, in other cases, the 5-day-notice provision has served a useful purpose in that the industry generally understands that a petition should be filed and served on 5 days' notice. Since final orders usually become effective from 30 to 60 days after entry and publication, there is ample time for filing a petition for a stay after the notice period. This gives the Board opportunity to file its objections. Five days would seem to be a "reasonable" period in most cases, as courts by rule usually provide this much time for filing of answers. Third, since substitution of "reasonable" would permit the courts to vary the notice period according to the circumstances of each case, this might well foster a situation in which the parties would delay filing until very near the effective date of the order complained of, and then allege an emergency. This would not appear to be the result desired by the proponents of the legislation. Accordingly, the Board believes that the present notice requirement of section 1006 (d) is "reasonable" and the Board does not favor the enactment of H. R. 6631, amending the provision. |