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Mr. BAKER. No; I recall that it was more than 5 or 10 minutes, but I cannot say how much longer, because we have a vast number of matters which are taken up each day and it is difficult for me to say
how long they discussed them. Most of them were in substantial agreement with it, since the comments had been circulated and they had had an opportunity to look over them.
Mr. HESELTON. Was that the only matter before the Commission on that date at that time?
Mr. BAKER. No, it was not.
Mr. HESELTON. How many other matters were before the Commission?
Mr. BAKER. I could not give you an accurate answer. I would just say it was a normal Commission meeting at which anywhere from 30 to 100 different items are taken up.
Mr. HESELTON. The bill introduced by the chairman of the subcommittee, Mr. Harris, was introduced in June 22.
Mr. BAKER. That is correct.
Mr. HESELTON. The bill introduced by Mr. Beamer was introduced on what date?
Mr. BAKER. Fairly close together is all I can recall. Mr. HESELTON. But the Commission's meeting was not until November
Mr. BAKER. That is correct, Mr. Heselton. I mean, when we find that a bill has been introduced in Congress, we immediately circulate it to all of the Commissioners. We point out the necessity for an approaching opinion and ask what they wish to comment on the bill. Sometime or other we have asked them to comment, and then subsequent to that, we prepare our comments on it.
Mr. HESELTON. Mr. Beamer's bill was introduced the same day as the chairman's bill-Mr. Harris' bill was introduced.
Mr. BAKER. I thought it was approximately the same time. I do not recall exactly.
Mr. HESELTON. I was interested in how much consideration the Commission gave to the action taken by this committee in connection with the McFarland bill and the action taken on the floor of the House. Can you give me any statement as to that?
Mr. BAKER. When we begin to talk about the McFarland bill, I think that the Commission spent a great deal of time on that in the past in considering the matter. We have many times researched the legislative background because of questions that some of the Commissioners have raised; but I cannot tell you just how much time was put in on this aspect.
Mr. HESELTON. Let me ask this. Was this opinion prepared for the Commission prior to its meeting?
Mr. BAKER. Yes.
Mr. HESELTON. Did you study the question of the amendments that were introduced by this committee and adopted by the committee and recommended to the House?
Mr. BAKER. I did. I read some legislative reports in my supervision of the preparation of the Commission's report, which I wanted to bring to the attention of the Commission.
Mr. HESELTON. Did you consider the debate on the floor of the House?
Mr. BAKER. I cannot tell you whether I actually read the debate or not. I know I read the various reports of the committees including the conference committee's report.
Mr. HESELTON. Was there any doubt in your mind as to the position this committee had taken in 1952 with reference to the amendment introduced by the present chairman of the full committee, Mr. Priest?
Mr. BAKER. There was no doubt in my mind of the committee's position. There has been and there still remains a doubt in my mind as to whether or not what is meant by "discrimination" has accurately yet been expressed.
Mr. HESELTON. I am not interested in what may remain in your mind.
Mr. BAKER. Yes, sir.
Mr. HESELTON. I am asking you, as a competent attorney, if there was any doubt in your mind as to the intention of this committee in recommending to the floor of the House the amendments presented by the chairman of the full committee, Mr. Priest. Was there?
Mr. BAKER. Well, to the extent that I have expressed, there was a doubt in my mind as to the meaning of the language. There is a doubt in my mind.
Mr. HESELTON. But you had no doubt as to the intent of this committee, did you?
Mr. BAKER. I have no doubt that this committee does not wish there to be any discrimination against newspapers, and I still do not know in my mind exactly what is meant by the word “discrimination" as used there.
Mr. HESELTON. Did you suggest to the Commission that they might want to consider submitting to this committee alternative language to remove the doubt you had in your mind as to the language it had used heretofore?
Mr. BAKER. No; but I did suggest to the Commission that they should raise the question as to what is meant by “discrimination," in order that this committee and the Congress, if it saw fit to enact legislation, would enact language which we would not misunderstand.
Mr. HESELTON. Now, may I ask you again if you had in your mind at that time the debate that took place on the floor of the House in connection, specifically, with this particular amendment?
Mr. BAKER. As I said, I cannot recall at this time whether or not I actually looked at the debates. I had members of my staff prepare and bring to me the legislative history. I do not recall whether they pulled out specific parts of the debate on this or not.
Mr. HESELTON. Let me ask you this question, then. Did you or did you not have in mind that the committee in the House itself, in passing that bill—and that portion of the bill—did so unanimously?' I will strike out “unanimously” so far as the committee is concerned, because I do not recall what the vote of the committee was. On the vote on the floor it was unanimous. So they had felt that there had been discrimination exercised by this Commission.
Mr. BAKER. There is no doubt in my mind that this committee in the past has felt that there was discrimination.
Mr. HESELTON. Did you have any doubt-I am talking now particularly about this particular amendment in 1952—did you have any doubt about it?
Mr. BAKER. No; but when I interpret legislative history, I take into consideration the result of the conference committee as well as the reasoning given by the committee.
Mr. HESELTON. You know that the McFarland bill was a very complicated bill; do you not?
Mr. BAKER. That is correct.
Mr. HESELTON. You know that the conferees for the House considered many phases of that bill which were not in the Senate bill; is that not true?
Mr. BAKER. That is correct.
Mr. HESELTON. You knew that the specific language of the conference committee indicated that they had weighed the House's position on this, and because of assurance given by the Commission that they had not discriminated and there would be no discrimination, they agreed to removing it; is not that right? Mr. BAKER. That is correct.
Mr. HESELTON. How many cases have arisen since that time involving this particular question. You have mentioned two.
Mr. BAKER. I would imagine quite a few more than that.
Mr. BAKER. I haven't got an actual count of those. I am certainly willing to take your estimate.
Mr. HESELTON. You mentioned two in which you stated that the Commissioners had exercised discretion in favor of newspapers.
Mr. BAKER. That is correct. I can mention others in which it went the other way. I am not trying to say that it went this way all of the time.
Mr. HESELTON. Are you aware of or are you acquainted with the decision in the Hearst Radio case ?
Mr. BAKER. You mean with respect to the application for renewal of the Baltimore station ?
Mr. HESELTON. Yes; the WBAL case.
Unless there are overriding considerations preference should be given to a nonnewspaper, non-multiple-owner applicant.
Do you recall that language? Mr. BAKER. I remember reading some language such as that. I do not recall the specific language, because the main point in that case, which I have always been interested in from a legal standpoint, was a slightly different one.
Mr. HESELTON. What does "overriding consideration" mean?
Mr. BAKER. It means that a number of other factors outweigh this disadvantage.
Mr. HESELTON. Do you dispute the fact that under the present Commission's policy, newspaper ownership actually presents an irrebuttable presumption of comparative disqualification ?
Mr. BAKER. Yes; I do. Otherwise I would not be able to attempt to substantiate the two decisions of the Commission in the courts.
Mr. HESELTON. Can you support that by brief of the Commission's action, first, prior to 1952, and second, subsequent to that and
up this date?
And, I am not talking about the courts' decisions. I am talking about the Commission's decisions.
Mr. BAKER. Let me see, to make sure I understand what I am answering, Congressman, I want to make sure that I understand the point that you want me to answer. The question is: Could I support it with a brief?
Mr. HESELTON. May we ask the stenographer to read the question ? Read his statement first and then read my question.
(Thereupon the reporter read the record as requested.) Mr. HESELTON. Do you understand?
Mr. BAKER. No, sir. The question you are raising is: Can I support that? I would have to go back beyond what he has read.
Mr. HESELTON. All right; can you support the suggestion you made that the Commission has not created an "irrebuttable presumption of comparative disqualifications” wherever newspaper ownership appears? Mr. BAKER. In a comparative case ? Mr. HESELTON. Yes. Mr. BAKER. Yes, sir. Mr. HESELTON. Will you do that?
Mr. BAKER. I will. The two particular cases that come to my mind I have already cited.
Mr. HESELTON. I know, but you have not cited the other 10; have
Mr. BAKER. No, sir.
Mr. HESELTON. The other 10 may have been decided on other matters.
Mr. BAKER. In the other 10, the Commission did not rule that there was an irrebuttable presumption. It ruled that that was a factor to be considered and when it weighed the factor against all others, it found adversely to the particular applicants.
Mr. HESELTON. The McClatchy case arose before you became General Counsel ?
Mr. BAKER. I do not believe so.
Mr. HESELTON. That case, as I understand it from the report, was October 5, 1954.
Mr. BAKER. That is right, and I was there in September 1953.
Mr. BAKER. I do not recall the name of the examiner. I recall essentially what the examiner held.
Mr. ÅESELTON. Did the examiner find that McClatchy was superior in all areas of comparison save one-diversification media?
Mr. BAKER. That is true.
Mr. BAKER. The Commission reversed the findings made by the examiner with respect to the newspaper and awarded it to the nonnewspaper applicant.
Mr. HESELTON. In other words, the Commission reversed the examiner and awarded the license to the nonnewspaper applicant; is that not true?
Mr. BAKER. That is correct.
Mr. HESELTON. Do you recall the decision in the United States appellate court in that case?
Mr. BAKER. Yes, sir. Mr. HESELTON. Do you recall this language: Although the examiner's choice of McClatchy as superior in all respects except diversification of control is strongly supported by proof, we cannot find that the Commission's decision was arbitrary, capricious, or unsupported by substantial evidence.
Mr. BAKER. I do recall that.
Mr. HESELTON. Then, will you tell this committee what recourse any applicant has who owns newspapers, if the Commission can overrule its examiner's decision and does so in a case where the examiner has found that in all-and I stress "all" respects except diversification of control is supported by proof, and yet the court can only pass on whether the Commission was arbitrary or capricious or had no substantial evidence before it?
Mr. BAKER. First, the court also found that the Commission had substantial evidence for its conclusion that in many areas other than diversification McClatchy was not superior, but in fact Telecasting was.
Mr. HESELTON. What were those others?
Mr. BAKER. If I recall correctly, they were with respect to certain programing, with respect to certain integration of ownership and management, in those general areas, which are the principal areas other than diversification.
Mr. HESELTON. I don't want them generally. What were they?
Mr. BAKER. I would have to bring you the decisions, sir. I do know that that was specifically in our brief. I do know that the court made that specific in its decision. And I could supply them if you wished them.
Mr. HESELTON. Will you furnish to the subcommittee a full statement covering the 10 cases since April of 1952 other than the Tribune Company case in Tampa and the Biscayne Television Corporation case in Miami, in which the Commission, as I understand it, dealt with applications to newspaper applicants?
(The cases referred to follow :)
In re applications of The Tribune Co., Pinellas Broadcasting Co., the Tampa Bay Area Telecasting Corp., for construction permits for new television stations (channel 8, Tampa-St. Petersburg, Fla.) (9 RR 719).
A. Examiner's initial decision looked toward a grant to Tribune.
B. The Commission, in its final decision, granted the application of Tribune (released August 6, 1954).
C. The court of appeals subsequent y affirmed the Commission's decision.