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The bill in its present form, however, is somewhat ambiguous. It provides immunity unless the licensee or his agents or employees “participates” in such broadcasts.' It might be argued that participation occurs by mere operation of the station over which the speech is made. Such an interpretation would clearly defeat the purpose of the amendment. It is suggested that in order to avoid this possibility the amendment be made more specific. One way to do this is to change the proviso to read “unless such licensee, or such agent or employee, directly engaged in the preparation of such defamatory statement willfully, knowingly, and with intent to defame.'

Finally, it is recommended that the exeniption be made applicable to both civil and criminal defamation. H. R. 6810

Section 315 (a) of the Communications Act now provides that if a broadcast licensee permits “a legally qualified candidate” for a public office to use the facilities of his station, the broadcaster must afford equal opportunity to use the station to all other legally qualified candidates for the same office. The present .act does not compel any station to make time available to political candidates. However, if under any circumstances a single candidate is afforded time, a chain reaction commences whereby the broadcaster must furnish equal opportunity to all qualified candidates for the same office.

H. R. 6810 provides a limited exception to the all-encompassing scope of the present section 315 (a). It is made inapplicable to

any news, news interview, news documentary, panel discussion, debate, or similar type program where the format and production of the program and the participants therein are determined by the broadcasting station, or by the network in the case of a network program.”

A weighing of all considerations leads us to conclude that on balance the bill is sound in principle. It recognizes that we live in an era of electronic journalism and that the literal application of the equal time provision tends to defeat itself. It also would remove to a degree an existing discrimination. In no other field of programing is the broadcaster so mistrusted that there is a statutory imposition of equal time for all contenders. We believe that the handling of controversial issues by the broadcasting industry has shown that on the whole broadcasters are a responsible group capable of performing their function fairly.

In the event that H. R. 4814 is enacted, NBC recommends that consideration be given to making it applicable to programs broadcast pursuant to the exceptions provided in H. R. 6810.

ANTENNA TOWERS

*** * *

House Joint Resolution 138 and House Joint Resolution 139

House Joint Resolution 138 and House Joint Resolution 139 are identical. They would prohibit the Federal Communications Commission from granting a construction permit or a renewal of license for a radio or television station using an antenna tower extending over 1,000 feet above the ground, unless the Commission, after considering the recommendations of the Department of Defense, the Civil Aeronautics Administration, the Air Coordinating Committee, and any other interested party, made a special finding that such tower was not a hazard to air navigation due to being shielded by existing obstructions, or for other reasons.

Under the present act, the Commission has authority to deny applications for licenses which involve the construction of towers which would constitute a menace to air navigation. The Commission has promulgated rules which prescribe certain procedures and standards with respect to its consideration of proposed antenna structures. These rules are contained in part 17 of the Commission's Rules and Regulations and were formulated in conjunction with the Department of Defense, the CAA, other Government agencies, and the radio industry after exhaustive consideration. At the present time there is an IndustryGovernment Committee established by the Air Coordinating Committee to review part 17 and determine whether it should be amended in the light of changing conditions in both the aviation and broadcasting industry.

Proposed antenna structures are referred by the FCC to the Airspace Subcommittee of the Air Coordinating Committee for its recommendation as to whether a proposed tower would constitute a menace to air navigation. The Airspace Subcommittee renders an advisory opinion to the Commission. In the event of conflict and when no satisfactory adjustment can be made to both the Subcommittee and the applicant, the applicant is afforded a hearing under sec

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tion 309 (b) of the Communications Act. It is our information that this system: has been functioning in a satisfactory manner.

The absolute standard of 1,000 feet above the surface of the earth is unrealistic.. In determining the possible impact of a proposed tower upon air navigation numerous variable factors must be taken into account, of which height of the tower is only one.

This is not to say that the height of the towers is not important to the broadcasting industry. To implement the Commission's nationwide television allocations plan and provide the United States with a nationwide television service, it will be necessary to utilize antenna towers of considerable height. Increasing the height is one of the most effective means available for improving service.

In the last analysis both aviation and broadcasting are industries involving the public interest. There has been established a method and procedure whereby conflicts between them are cooperatively resolved. We believe it would be unwise for the Congress to interpose an arbitrary test which would be disruptive of the method evolved after most careful consideration. Accordingly we oppose House Joint Resolution 138 and House Joint Resolution 139. Very truly yours,

THOMAS E. ERVIN. Mr. HARRIS. The committee will adjourn, subject to the call of the Chair.

I am very sorry. May I recognize at this point our other colleague and other member of our committee who has come in. Mr. Klein, do you have some particular interest in this or wanted to ask some questions about the problems?

Mr. KLEIN. Just my general interest in you, Mr. Chairman.

Mr. HARRIS. Thank you very much. We are glad to have you come: in and sit with us on these matters. We may also observe when there is anything in the nature of political problems that we always count on you being around.

The Chair will adjourn the hearings on these proposals, subject to another date to be arranged to complete the hearings. I think about one more session should conclude all of the requests that we have had. The committee will adjourn.

(Whereupon, at 10:50 a. m., the hearing was adjourned, subject to the call of the Chair.)

COMMUNICATIONS ACT AMENDMENTS

THURSDAY, APRIL 19, 1956

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE OF THE COMMITTEE ON
INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C. The subcommittee met, pursuant to adjournment, at 10 a. m., in room 1435, New House Office Building, Hon. Oren Harris (chairman of the subcommittee) presiding.

Mr. HARRIS. The committee will come to order.

When the committee recessed the previous hearings various bills proposing to amend the Federal Communications Act, Judge Maris had requested an opportunity to appear and testify, since he was away at that time and had not made arrangements to have someone else here, the committee gave him that privilege.

Today it is the hope of the committee, in resuming hearings on the various bills, that we can conclude the hearings on these subjects because we would like to be in a position to consider the various proposals that have been presented to us.

The committee has a heavy schedule ahead of it, as we have had in the past. This meeting was scheduled today in the hope that the few remaining witnesses who indicated an interest in the various subjects at that time would have an opportunity to appear.

I have been advised that Judge Maris cannot be here this morning because of his appearance before another committee of Congress. I understand that Judge Prettyman is here and that he will speak on H. R. 6631.

Judge Prettyman, would you proceed. It is nice to have you with us today.

STATEMENT OF HON. E. BARRETT PRETTYMAN, A JUDGE OF THE

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Judge PRETTYMAN. I appreciate the privilege of appearing.

Mr. HARRIS. It is not often we have the pleasure of seeing you come up here. We are glad to take advantage of this and to let you see how it feels to be looking at this from the other side.

Judge PRETTYMAN. You remind me of the time recently when I went to the dentist and I said to him, “Doctor, I am pretty nervous, but I have one satisfaction. I do not think I am any more nervous in your chair than you would be if you were sitting in a chair down in my shop. ”

Mr. Chairman and gentlemen of the committee, my name is E. Barrett Prettyman, and I am circuit judge of the United States Court of Appeals for the District of Columbia Circuit.

At the request of Chief Judge Henry W. Edgerton of our court, who was unable to be present today, I appear before this committee on behalf of the Judicial Council of the District of Columbia Circuit, of which I am a member.

The Civil Aeronautics Act of 1938 and the so-called Hobbs Act contain provisions that interlocutory relief against orders of the agencies may not be granted except upon at least 5 days' notice to the agencies. The Hobbs Act applies to the Communications Commission, and the Secretary of Agriculture, the Maritime Board, and the Atomic Energy Commission.

Our court gets a great many petitions for review of orders of these agencies. We have been confronted occasionally with the problem when interlocutory relief is sought by petitioners who claim that irreparable injury would accrue to them if the agency order is permitted to go into effect even temporarily, and sometimes the required 5. days before the effective date of the order does not exist.

In respect to all other agencies, the rule requires reasonable notice and, of course, our court would insist upon reasonable notice to affected agencies in any event.

Another factor in the situation is a possible conflict between statutes: The so-called All Writs Statute and the Administrative Procedure Act authorize the issuance of necessary orders without any prescribed period of notice. The Administrative Procedure Act, for example, provides:

Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, every court is authorized to issue all necessary and appropriate processes to postpone the effective date of any agency action or to preserve statutes or writs pending conclusion of the review proceedings.

We have been able to work the problem out in individual cases where irreparable damage was threatened, through the cooperation of the various agencies. Unless some cogent reason to the contrary appears, they will usually abide a suggestion from the court that a short administrative postponement of the order be made in order to permit the court to consider whether interlocutory relief should be granted. However, our court and particularly our late chief, Judge Harold M. Stephens, became concerned about the repeated problem and we initiated a proposal for this bill.

The bill would simply substitute the requirement of reasonable notice for the present mandatory 5 days' notice in the Aeronautics Act and the Hobbs Act.

My purpose in coming here is to tell the committee the problem and to leave the decision with respect to it just squarely in the laps of you gentlemen. I have a prepared statement which summarizes all that seems to be necessary for us to say on the subject, which I should like to put in the file. I also have here a resolution on a bill adopted by our judicial council, which I should like to place in the file.

My understanding is that some, if not all, of the agencies mentioned in the bill approve it.

I think that concludes my statement.
Mr. HARRIS. Thank you, Judge.

You may have permission to include the resolution and the statement referred to in the record at this point.

(The documents referred to are as follows:)

1

RESOLUTION

Resolved by the Judicial Council of the District of Columbia Circuit, That it approves the legislation embodied in H. R. 6631, 84th Congress, 1st session, 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 ; It is further

Resolved by the Judicial Council, That a copy of this resolution be transmitted to the appropriate committees of the Congress.

Dated: April 18, 1956.

STATEMENT BY E. BARRETT PRETTYMAN CONCERNING H. R. 6631, 84TH CONGRESS

My name is E. Barrett Prettyman. I am a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. At the request of Chief Judge Henry W. Edgerton of the District of Columbia Circuit, who is unable to be present today, I appear before this committee on behalf of the judicial council of the District of Columbia circuit, of which I am a member.

The judicial council of the District of Columbia circuit is charged by the provisions of section 322 of title 28, U. S. Code, with responsibility for the effective and expeditious administration of the business of the courts within the circuit.

The statutes which H. R. 6631 proposes to amend now provide that no interlocutory relief may be granted by a court of appeals in cases from the agencies covered by the bill except upon at least 5 days' notice to the board or agency involved. It has been necessary nevertheless for the court of appeals for the District of Columbia circuit to issue temporary injunctions or stay orders in certain cases from the agencies described in the bill in order to prevent irreparable damage pending appeal and consequent frustration of jurisdiction." The power of the court to take such action is recognized in the All Writs Statute (28 U. S. C. 1651) which provides:

(a) The Supreme Court and all courts established by an act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

And in the administrative Procedure Act (5 U. S. C. 1009 (d)), which provides :

(d) Pending judicial review any agency is authorized, where finds that justice so requires, to postpone the effective date of any action taken by it. Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, every reviewing court (including every court to which a case may be taken on appeal from or upon application for certiorari or other writ to a reviewing court) is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action or to preserve status or rights pending conclusion of the review proceedings.

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The judicial council of the District of Columbia circuit took cognizance of the apparent conflict between the All Writs statute and the provisions of the Administrative Procedure Act on the one hand, and the 5-day restrictive provisions of the statutes here under consideration on the other hand. The council concluded that for all practical purposes the 5-day restrictive provisions are ineffectual because of the recognized power of the court, upon good cause shown, to grant

1 For example, in National Airlines, Inc. v. Civil Aeronautics Board, case No. 11383, National Airlines, on April 8, 1952, moved the court to temporarily restrain the effectiveness of a Board order which amended Eastern Airlines' certificate of public convenience and necessity and authorized air service by Eastern over areas then being served by National. The Board order was to become effective April 11, 1952, and National alleged immediate and irreparable injury (serious diversion of traffic) unless a temporary restraining order was entered pending action by the court on National's petition for a star filed concurrently with the motion for a temporary restraining order. However, there was no action on the motion for a temporary restraining order since the Board filed its opposition to the petition for stay the following day (April 9, 1952). The court heard argument on the petition on April 10, 1952, and entered an order therein the same day granting the stay. This was all accomplished within 3 days after National Airlines had filed its motion for temporary restraining order and petition for stay.

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