time all the parties appear and in these cases the Department of Defense appeared in opposition.

The hearing examiner examines the facts and comes up with a conclusion.

I believe there is only one case that is before the Commission at this point where the examiner recommended approval, and we have had oral argument on it and are currently considering it.

We have reached some tentative agreements in this Air Coordinating Subcommittee that, in effect, would require the Commission to take certain actions which we are currently studying.

We, as a matter of fact, have a report that we both agreed to, and I will be glad to leave it here as indicating the areas of agreement that I agreed to on behalf of the Commission as one member of it, making it clear that I could not bind the Commission to it but Ï would be the advocate for it.

All parties agreed that if we could do this, it would be a very finė thing. So we are currently struggling with that problem.

Briefly, we have agreed that the Federal Communications Commission would initiate rulemaking which would require all towers in excess of 500 feet to be either grouped in farm areas or placed on a single structure, and to require that these farm areas be so spaced in relation to each other as to present the least hazard to aviation.

When we speak of farm areas, we are referring to what we call antenna farms. Actually, in our rules right now we encourage the use of antenna farms.

I think probably one of the outstanding examples is Florida. There is one in Florida and one in New York where a particular area will house all the antennas so that aviation knows that all that is troublesome is in one place.

Mr. FLYNT. But how large an area would that be?

Mr. LEE. Well, it would depend on the height of the tower, Congressman. The guy wires come down at about a 90° angle, so it would be a matter of acres for, let's say, a tower of three or four hundred feet.

Mr. HINSHAW. Hold everything. Your angles are a little bit off. Nothing comes down that way at a 90° angle.

Mr. LEE. Forty-five-now, for us to require that, of course, raises some problems and at first blush you might say since perhaps 90 percent of the television allocations have already been made and the towers are up, perhaps this would not accomplish too much.

On the other hand, we cannot foresee what the future might bring and it is doing the best we can. Now, how we do that is a problem. The first station, for example, in an area might be permitted to pick its site. He gets approval and so on from the aviation people. Then the subsequent applicants in some way must be forced to go on the same site. That raises problems of what rights does the original owner have, how much does he charge the fellow, and does he have to give it to him, and so on.

Does he have to permit him, for example, to put the same antenna on the same tower?

One tower can serve a number of stations in many cases. We hope that we can do that, certainly I do, and I will be the advocate before the Commission on that.

Mr. DOLLIVER. Mr. Chairman, may I make an inquiry?

Mr. HARRIS. Yes.

Mr. DOLLIVER. It is not proposed in this legislation that it be retroactive as to existing towers, is it?

Mr. LEE. I think there is a provision there for examining that situation at renewal time; is that not right?

Mr. HINSHAW. Yes.

Mr. WOLVERTON. The words are used here "and shall not renew the license."

Mr. LEE. Unless we make an affirmative finding.

Mr. HARRIS. Let us understand now what the resolution provides. It provides:

That the Federal Communications Commission shall not grant a license for the construction of a radio or a television station using an antenna tower extending over 1,000 feet above the ground, and shall not renew the license for such a station, unless the Commission makes a special finding, after due consideration of the views and recommendations of the Department of Defense, the Civil Aeronautics Administration, the Air Coordinating Committee, and any other interested party, that such tower, due to being shielded by existing obstructions, or for other reasons, is not a hazard to air navigation.

Mr. LEE. That, in effect, is what we do now.

As a matter of fact, we can go further because it is anything over 500 feet in our rules and we do that through the mechanism of the air space subcommittee, which is the local regional group of all interested parties who, in almost every case that has come to the Commission, have agreed to work it out, and they say you have to move a few miles or it is a little high, and so on. They work it out and recommend to the Washington group.

Recently, in these 3 or 4 cases that we have under hearing, the Washington group has voiced objections and they are presently in

test.

Mr. HARRIS. Presently where?

Mr. LEE. They are presently in test; that is, they will be before us and presumably go to court.

Mr. DOLLIVER. Is there any instance under the present law where you have required upon a renewal that a tower be moved to a different location? Has that ever occurred?

Mr. LEE. I know of no such case.

Mr. DOLLIVER. That is, has that issue ever been raised in a renewal case?

Mr. LEE. I am sure it has not.

Mr. DOLLIVER. Do you consider that you do have such power at the present time to require alteration or removal of tower or change the location as a preliminary, or a condition of renewing the license?

Mr. LEE. I believe that we do have such authority upon a finding that it would be in the public interest.

I mean if some very important defense activity cropped up and they had to put the airport right at that particular place, it might be an example of where we would do it.

It would, of course, be an awful hardship on the applicant.

Mr. DOLLIVER. Would not the constitutional limitation affecting private property for public use without compensation apply there? You would have to make some compensation?

Mr. LEE. I would assume so.

Mr. ROGERS. Would the gentleman yield?

Mr. DOLLIVER. Just a moment and I will finish.

That being the case, and considering that you do have that authority, what do these joint resolutions add or what does this proposal add to the authority you already possess or claim you possess?

Mr. LEE. Actually, we are opposing the bill. We do not think it adds anything.

We think our existing procedures are adequate, recognizing still that there is a problem and we are constantly working on it through these committees.

Mr. DOLLIVER. I yield to Mr. Rogers.

Mr. ROGERS. What I was thinking about was what you were talking about a moment ago.

Compensation has to do more or less with the application itself. What you get from the approval of that application is more or less a privilege than it is a right?

Mr. LEE. That is right.

Mr. ROGERS. Subject to revocation?

Mr. LEE. The act is very specific.

This is a privilege for a time certain, and in these cases 3 years. Mr. HARRIS. Mr. Flynt?

Mr. FLYNT. Mr. Chairman, I want to follow through on a reading. you made a few moments ago.

As I understand this, and follow me on this, Mr. Commissioner,. under present law you have the power to revoke, or rather, to refuse to renew, a license upon an affirmative finding that it is a hazard to air navigation.

Under this proposed resolution, you would have to have an affirmative finding that it is not a hazard to air navigation before you can do it; is that not true?

There is quite a bit of difference between the two.

As I understand, this does give you considerable additional powers over and above what you have now?

Mr. LEE. Well, I consider that it might even be construed as being a little limiting.

We have language in our act, 303 (q), that specifically requires us to make such finding and gives us authority to require certain markings and lightings on a tower to minimize whatever hazards there are. Mr. HARRIS. Will the gentleman yield?

Mr. FLYNT. Yes, sir.

Mr. HARRIS. Is it not a fact, however, that under present law the Department of Defense or the CAA, if they make a recommendation against a particular tower going beyond 1,000 feet you do not have to concur in the recommendation?

Mr. LEE. That is correct, sir.

The ultimate responsibility is ours.

Mr. HARRIS. Yes.

This would make it mandatory for you to consider their recommendations.

Mr. FLYNT. May I interrupt to include something?

Mr. HARRIS. Yes.

Mr. FLYNT. And the proposed amendment would prohibit them from renewing a license unless they have an affirmative approval by the Department of Defense, Civil Aeronautics Administration, Air Coordinating Committee, and any other interested parties.

Mr. LEE. I think the difficulty we would run into there is some kind of definition as to what a hazard is. I think we might require more than an opinion.

We have to give applicants a hearing and reasons why we cannot do something. I do not know how well we would fare in court if we were arbitrary.

Mr. ROGERS. Will you yield?

Mr. FLYNT. Yes.

Mr. ROGERS. Is not the crux of this decision that this lifts your floor or ceiling, whichever you want to talk about, from 500 feet to 1,000 feet?

Mr. LEE. Well, we would still have the provision in our rules, along with this legislation, that we have to consider air hazards. If all we had were this legislation, I think perhaps that would be true. Mr. HINSHAW. Mr. Chairman?

Mr. HARRIS. Mr. Flynt, are you finished?
Mr. FLYNT. I would be glad to yield.

Mr. HINSHAW. No, you go ahead.

Mr. FLYNT. Under existing law, you have a great deal more discretion on the construction of a tower than you do on the renewal of a license with the existing tower, do you not?

Mr. LEE. Yes, I think the burden of proof would perhaps shift. If we wanted to deny a renewal, we have to prove something.

Mr. FLYNT. Then if this resolution were passed, the practical effect of it would be to give to the Federal Communications Commission the same broad powers of discretion in renewal of licenses for stations with existing towers that it now has in granting licenses for the construction of new towers?

Mr. LEE. I wonder if our general counsel could help me on that. Mr. BAKER. The act itself gives us the same power with respect to an application upon renewal as upon the initial application.

From a practical standpoint, in the absence of a changed circumstance affecting hazards to air navigation, to say that something which originally was not potentially a hazard to air navigation is now one would be difficult.

Mr. FLYNT. Assuming that to be true, then a statement made a few minutes ago is not exactly in accord with that, because, as I read this language and compare it with what I assume to be the existing law, you have to have an affirmative finding that it is a hazard to air navigation under existing law before you can refuse under the act to renew a license.

This, as I construe it, would change it and make it just exactly the opposite, that you would have to have an affirmative finding that it is not a hazard to air navigation before you could renew the license.

Mr. BAKER. I think that is correct to the extent, of course, that there is a rather fine line as to whether burden of proof makes a lot of difference, but that is substantially correct, that you would have to have evidence in the record on which you could base a finding that something is a hazard to air navigation to now deny either a renewal or grant.

Under the proposed law, you would have to have affirmative evidence in the record on which to base a finding that it is not a hazard, and I submit that would be more difficult to attain.

Mr. HARRIS. Mr. Hinshaw?

Mr. HINSHAW. I think that the whole subject here is getting down into some fine legal technicalities that have nothing to do with the case. The case is that the Commission was on the point of allowing the construction of a number of towers, even as high as 2,500 and 3,000 feet; is that not correct?

Mr. LEE. I think 2,000.

Mr. HINSHAW. 2,500, I understood was to be the highest application

Mr. LEE. There might be.

Mr. HINSHAW. That had been considered up to that time but there is not limit, no practical limit whatsoever as to the height of a tower that the Commission might grant a construction permit for; is that correct?

Mr. LEE. I think that is correct.

Mr. HINSHAW. And that the Commission had on numbers of different occasions granted construction permits for towers that directly were in the pathway of landing and takeoff of aircraft from existing airports?

Mr. LEE. I do not believe that is quite accurate. In every case I believe we had the full concurrence of all interested parties.

Mr. HINSHAW. I wish somebody would go out to Teeterboro Airport and try to come in some time in cloudy weather when the ceiling was down to 200 feet, and see if you did not hit a tower, because you have to be awfully careful.

Mr. LEE. We have had the concurrence of the airspace subcommittee in every case that we have granted. If we make an exception, it will be on this hearing case.

Mr. HINSHAW. You mean it has been unanimous in each case?
Mr. LEE. That is right.

Mr. HINSHAW. What about that case you were just mentioning where the Department of Defense was in opposition?

Mr. LEE. We have not granted that application yet.

I say that would be the exception if we grant.

Mr. HINSHAW. I would say it would be the exception. I do not think you should be permitted to grant it if the Department of Defense objects.

Mr. LEE. We have gone through hearings and oral arguments on it. Mr. HINSHAW. I do not mean aside from the hearing and oral argument.

If the Department of Defense says you should not and that that would be a hazard to navigation of airspace, I think that definitely the Commission should not grant it or be permitted to grant it. Mr. LEE. I think it would be giving a great deal of responsibility to them.

Mr. HINSHAW. They have all kinds of responsibility now.

Mr. LEE. For something that I feel in the past has certainly worked out on a compromise basis. I would not hesitate to say that maybe there should be some limit if we cannot work something out, but I do feel that our procedures have been working quite well and everyone is conscious of the fact that there are calculated risks in all of these things.

You have to measure aviation against television.

Mr. HINSHAW. Well, of course, my friend, television is a convenience to the public and not a necessity, whereas the navigation of the airspace by military aircraft is a necessity.