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question was raised as to whether or not the proposed new language might not be construed or interpreted to provide a different or modified procedure from that now being followed. The committee, therefore, decided to eliminate the proposed section. It should be distinctly understood that in eliminating this section the committee has done so solely because the Commission is now following the procedure which was outlined in the section, has testified that it intends to follow that procedure, and that it is of the opinion that it has no legal or constitutional authority to follow any other procedure.”
In 1952, the Congress considered a proposed amendment of the Communications Act to include an antidiscrimination clause. Senate bill 658 to further amend the Communications Act of 1934 was referred to the Committee on Interstate and Foreign Commerce of the House of Representatives. In its section-bysection explanation of S. 658, as is contained in its report (Rept. No. 1750 to accompany S. 658), the following appears (at p. 9):
“Subsection (c) of this section adds at the end of section 308 of the present law a new subsection (d). The new subsection deals with the question of how newspapers are to be treated with respect to the granting of construction permits and station licenses. It provides that the Commission shall not make or promulgate any rule or regulation of substance or procedure, the purpose or result of which is to effect a discrimination between persons based upon interest in, association with, or ownership or any medium primarily engaged in the gathering and dissemination of information and that no application for a construction permit or a station license, or for the renewal, modification, or transfer of such a permit or license, shall be denied by the Commission solely because of any such interest, association, or ownership.”
The antidiscrimination clause was discussed at length on the floor of the House :
“Mr. Brown of Ohio. There are a great many provisions written into this law that have been needed in the past. I am specifically interested in one particular section of the bill that I would like to mention, because I have heard some rumors within the last 2 or 3 days which give me some cause for alarm. I would like to refer, if I may, to paragraph (d) on page 46, beginning on line 6, which provides that,
“ 'The Commission shall not make or promulgate any rule or regulation, of substance or procedure, the purpose or result of which is to effect a discrimination between persons based upon interest in, association with, or ownership of any medium primarily engaged in the gathering and dissemination of information and no application for a construction permit or station license, or for the renewal, modification, or transfer of such a permit or license, shall be denied by the Commission solely because of any such interest, association, or ownership.'
“I believe the great Committee on Interstate and Foreign Commerce acted wisely in writing this section into the bill in order to make certain that in the future some individual who temporarily rises to power in the Federal Communications Commission shall not attempt to do that which has been done in the past under the administration of Chairman Fly, if I may be explicit, when it was suddenly decided, without any logic, right, or reason, that if anyone should be interested in ownership of a newspaper, if anyone should be a publisher, that he was unfit to engage in radio; that he should not be permitted to operate a radio station, or to have any ownership in a radio station; that he could not be trusted-perhaps that was the idea—with a license for a radio, I want to say first of all, if I may, Mr. Speaker, that while I am a newspaper publisher, I have no interest in radio of any kind; I own no radio station, no stock in any radio or television station; I never expect to own any radio or television station or to have any interest in any corporation or partnership owning one. So with no self interest involved, I say to you that if the Federal Communications Commission, through an arbitrary ruling, can say an American citizen who happens to have an interest in a newspaper or magazine, or who is engaged in the publishing business, shall be considered unfit to receive a radio or television license, then just as easily the Commission might rule that if a man has red hair he shall be considered unfit to own a radio station or to engage in television; or the Commission can say, if you please, that if a man belongs to the Methodist Church or the Catholic Church, he shall be barred from radio and television.
1 98 Congressional Record 7520-7521 (June 17, 1952),
“There should be just one test, Mr. Speaker, for every individual who applies for a license for a radio or television station, or to engage in that industry, and that is the kind of service he can and will render to the people of America; whether or not he will keep faith and abide by the laws and regulations of this Commission properly; whether or not he will give the adequate service that we have a right to expect of those to whom we grant more or less of a Government monopoly of the air.
"I am hoping that this particular section, which prohibits discrimination hy the Commission in the granting of radio and television licenses, will be kept in this bill, because if it is stricken out, by the very act of striking it out through amendment, this House will be placing its stamp of approval upon the idea at least that the Federal Communications Commission has the right to discriminate. I contend that it does not have the right to discriminate and should not be permitted to discriminate, and that this committee acted wisely and well when it wrote into the law a prohibition against any such discrimination,
"Mr. ELLSWORTH of Oregon. I agree entirely with what the gentleman is saying with reference to the value of the section of the bill on page 46 which definitely provides that the commission shall not make any rule or regulation which prevents newspaper publishers or any other publishers from owning radio stations. I think it is pertinent to point out to the gentleman and to the House that when the Commission was previously discriminating against publishers and newspaper owners, it never at any time actually issued an order which prevented an application being granted to a newspaper publisher. All it did was simply to refuse to act on such applications.
“Mr. Brown of Ohio. Because their position could not be sustained in a court of law, they took the other method of just simply sitting on the applications and never granting the licenses. In hearing after hearing they would not face the issue so that you could get the case in court and get a decision.
“Mr. HARRIS of Arkansas.? A new subsection has been added by the committee which provides that the Commission shall not make any rule or regulation which would effect a discrimination between persons based upon interest in, association with, or ownership of any medium primarily engaged in the gathering and dissemination of information, including newspapers. It is also provided that no application for a construction permit or a station license, or for the renewal, modification, or transfer of such a permit or license shall be denied by the Commission solely because of any such interest, association, or ownership. This amendment, which has been referred to as the newspaper amendment has occasioned considerable discussion in our committee. In adopting this amendment, the committee was influenced by the history of the Commission's policy with respect to the granting of broadcast licenses to newspapers, and by the legislative history of prior legislative proposals designed to deal with the same problem.
"A predecessor bill to S. 658 contained a provision to the effect that the Commission may not adopt any rule which would result in a discrimination between persons based upon race, religious, or political affiliation or kind of lawful occupation or business association. This provision was dropped from the bill and the Senate committee report stated that the section had been dropped because the Commission practice and procedure had been in accord with that which had been intended by the language of this section.
“While the Cominission has never again attempted to adopt a rule disqualifying or discriminating against newspapers, there ha been from time to time statements made in Commission decisions which indicate that the Commission considers newspaper applicants for radio or television licenses especial problem children. Different Commissioners have stated the Commission's policy in different terms. However, it appears that newspaper applicants somehow enter the field with some strikes against them. It was the sole purpose of the amendment inserted by the House committee to make sure that newspaper applicants will be treated on a par with other applicants for radio and television licenses, and that the Commission does not follow any arbitrary policy which discriminates against those who are engaged in the gathering and dissemination of information.
2 Ibid., 7523-7524.
"Mr. McKINNON of California. Mr. Chairman, I want to express my appreciation for the good work that this committee has done on this bill. I think something of this sort has been needed for a long time. I think the committee made a good effort in that direction. * * *
“Mr. Chairman, I would like specifically to touch on section 7, paragraph d, page 46, as it relates to the publishers in their application for radio broadcasting permits.
“Before coming to the Congress, I was the publisher of a good-sized metropolitan daily newspaper, and the owner of a 5,000-watt radio station in San Diego. So what I say may not fit exactly with my best interests as an individual, but I notice that this bill places a rightful emphasis on public interest, convenience, and necessity. I think we should keep this in mind at all times— the public interest, the public convenience, and the public necessity, because when these licenses in the radio field are handed out, they provide a man an excellent opportunity for a good income. Basically, what we are trying to do, however, is to serve the public and provide competition of ideas in every way possible. Now when you get into markets where you have real competition in the newspaper business, and where you also have 2, 3, or 4 channels for television licenses, I think this section should apply just as it is now worded. But, where we move into an area where you have a newspaper monopoly, and where in that area you are going to have only one TV channel, then I think this wording should be softened or else we should have some understanding on the floor today that the word 'solely' is a qualified word. We should be sure that we have competition of ideas if our democracy is going to function. Too often we give a lot of lip service to free enterprise without really meaning it. I am all for free enterprise, but I think democracy can function only when we likewise have freedom and competition of ideas for the public.
"When we come to an area like Los Angeles for instance where we have 7 TV channels and 3 distinctive competitive newspaper ownerships, then I would say that this provision is good. But where we move up to a city like Oakland, where we have 1 newspaper monopoly, dominating the newspaper field in that area, where you have only 1 TV channel to be granted in that area, then, in cases like that, the FCC should not allow the newspaper monopoly to also own the sole TV broadcasting outlet. This section (d) should not apply in a case like this for it leads to a complete dissemination of ideas in that area. To do so would defeat the basic concept of this bill; to wit, public interest, convenience, and necessity. I wonder how the committee feels on problems of this kind and how that word ‘solely' should be interpreted by FCC.
* "Mr. PRIEST of Tennessee. I am in full accord with the gentleman's view against granting a monopoly on sources of gathering and disseminating information. But with reference to the amendment, particularly that part of it which provides that no rule or regulation shall be promulgated that would result in discrimination solely on the basis of an interest in or connection with a newspaper, I wonder if it is not the gentleman's opinion that the Commission, getting back to the question of public interest, cannot make a decision in the public interest against a monopoly, and use that as a basis for a decision if such a monopoly situation presented itself. In other words, it seems to me that the public interest, as the gentleman has already emphasized, will govern at all times. I believe that, with this amendment in the bill, the Commission still might refuse a license that would result in a monopoly, because a monopoly would not be in the public interest.
“Mr. McKINNON. I thank the gentleman.
"I would like to ask further: If the Federal Communications Commission were to turn down an application of a publisher for a TV station in an area that would grant him a monopoly in news dissemination and information, would not the FCC be right in turning down that application, based upon the public necessity and public convenience, rather than on the strict interpretation of the word ‘solely' in that particular paragraph ?
"Mr. PRIEST. It is my opinion that that is true.
“Mr. MCKINNON. Is that in accord with the views of the chairman of the subcommittee?
3 98 Congressional Record 7529–7530 (June 17, 1952).
“Mr. HARRIS. I do not believe it is involved in this amendment. I should like. to say that the amendment which the gentleman is discussing is an amendment offered by our distinguished friend from Tennessee (Mr. Priest), a member of the committee, who has just given you what his intention in the amendment was. It is my feeling, and I think it is the general position of the committee, that all of these matters should be taken into consideration in determining what would be in the public interest, convenience, and necessity. If there is a question of monopoly volved, where you have two applicants, then certainly the Commission could not say that it would be in the public convenience and necessity to give it to a station that would bring about a monopoly in this field. In other words, it was the feeling of the committee to not necessarily bring about a situation where the Commission would have to favor one applicant over another, but to try to say to the Commission that it should not discriminate against one applicant over another. But the important thing, as the gentleman from Tennessee has just said, is that the Commission should determine these applications solely on what is best for the convenience and necessity of the public.
“Mr. McKINNON. I thank the gentleman.
"Mr. PRIEST. If the gentleman will yield further, I wish to add just one sentence to what the distinguished gentleman from Arkansas has just said: Not only shall the Commission determine it solely on the basis of public interest, but on the other hand, no applicant shall have two strikes against him solely because of his interest in a news-gathering organization, corporation, or partnership, or whatever it might be.
“Mr. MCKINNON. With that explanation I think the paragraph is sound. I do not think a publisher should be discriminated against because he happens to own a newspaper. I think it is the philosophy of this bill that it should be the interpretation of the FOC that the public interest is best served when you have competition of ideas rather than a monopoly of ideas.
"Mr. PRIEST. And with that I fully agree. That was my own thinking in offering the amendment to the committee.
“Mr. PRIEST. In response to the gentleman, may I say that I feel that the language in this amendment is the best language that could be developed to deal with a situation in which a majority of the committee felt needed some expression of congressional intent. Earlier in the day in a colloquy with the gentleman from California (Mr. McKinnon) I tried to emphasize in response to some questions which he asked, that the public interest must always be paramount; that in deciding between various applicants for licenses, the Commission must first of all be governed by the public interest. I do not believe that the public interest is best served by granting a monopoly to newsgathering or newsdisseminating agencies. Therefore, it seems to me that this amendment emphasizing that applicants shall not be discriminated against solely because they have an interest in the operations of a newspaper, is necessary in the bill. The public interest is still paramount, and the public interest will still guide the Commission and the public interest cannot best be served by granting a monopoly.
“Mr. MARTIN of Massachusetts. As I understand the gentleman's amendment, it does not give the owners of newspapers any special privileges. It does not provide that any monopoly should exist, but simply says that because a man happens to own a newspaper, he shall not be discriminated against when he applies for a license to operate a radio or television station; is that correct?
“Mr. PRIEST. That is certainly the purpose of my amendment, and that is what I had in mind in offering it. I believe the language of the amendment does just that.
“Mr. MARTIN of Massachusetts. And the defeat of the amendment at this time might well be interpreted as a go-ahead signal to discriminate against them; is that not correct?
"Mr. PRIEST. I feel it might be so interpreted.
"Mr. MARTIN of Massachusetts. I hope the amendment offered by the gentleman from Tennessee (Mr. Priest) will prevail.
“Mr. DOLLIVER of Iowa. This is not a provision to give a special privilege to newspapers or any other media of dissemination of information. It is to secure to them the same treatment that other applicants may have. Perhaps you think the committee in putting this provision in, leaned over backward in an attempt to prevent discrimination against other media of information, in applying for radio licenses. The fact is there was some discussion before our committee which indicated that in years gone by there was a definite move in the Radio Commission to cut off or cut out any newspapers from operating radio stations.
“True, that move did not come to any real fruition; that is, no rule was adopted at the close of those hearings; but, certainly, the very fact that the hearings were held by the Commission, even so, raised some apprehension and some fears in the hearts of people who are engaged in the dissemination of information, and they could not see why they should be picked out as the object of discrimination by the Communications Commission when it came to the granting of radio licenses. * * *
“Mr. HALLECK of Indiana. As the gentleman will perhaps recall I served on the Interstate and Foreign Commerce Committee for a great many years. Through those years we frequently had occasion to deal with legislation concerning the radio industry; through those years we constantly heard threats to deprive all newspaper people of the right to have radio stations. As I listened to those arguments I then became convinced that the imposition of any such arbitrary rule would not be fair and would not be right, and I have consistently opposed that proposition. So, certainly, here today I shall not support this amendment; as a matter of fact I am in opposition to it and I hope that it is not adopted.
“Mr. DOLLIVER. Mr. Chairman, the gentleman from Indiana has expressed very succinctly the background behind this provision. Over the years there has been a trend or tendency on the part of some members of the Commission to take an arbitrary attitude. Again, I say that this provision, as was pointed out by my colleague from Tennessee, does not give any special privilege to newspapers or other people engaged in the dissemination of news; it does not give them any special privilege, because the primary thing in granting licenses is the public interest, convenience, and necessity. All tihs provision does is to prevent the Commission from taking an arbitrary stand that solely because an applicant is engaged in the dissemination of news otherwise, he shall not be denied the right to have a radio license. * * *
“Mr. HINSHAW of California. I think it might be explained that this matter arose due to a decision which was rendered on June 18, 1951 [Hearst Radio, Inc. (WBAL), 6 Pike & Fischer R. R. 994], when the Chairman of the Commission and one of the members made a statement to the effect that there should be no multiple ownership of news-disseminating agencies. The whole Commission did not go along with this, but in view of the fact that a part of the Commission bad taken this other viewpoint and the majority ruled against them we decided to consider the matter in committee.
“Mr. ROGERS of Florida. Mr. Chairman, we discussed this problem in detail in the Interstate and Foreign Commerce Committee. As stated by the gontleman from Tennessee [Mr. Priest] he offered the amendment and after long discussion of it I do not believe there was any opposition at all when it came to a final vote on the amendment. All of us concurred in the viewpoint that there should be no discrimination against newspapers. That is all it means. It is simple. It says that the Commission shall issue no rules or regulations that will discriminate in any way against newspapers, newspaper owners, or those associated with the newspaper business. That is all that is provided. It is in the negative, it states they shall not refuse to issue a license solely because of the fact that one may have an interest in a newspaper. I think that is a fair provision. If a man owns a newspaper and shows that it is in the public convenience and necessity for him to operate a station in his vicinity I do not think the Commission should hold that against him. I do not think they should say to him: “You have a newspaper down there, so we will not give you a license to operate a radio station.'
"Mr. Brown of Georgia. There has been the contention in many communities of the country that the people would be without any radio service at all unless someone connected with a newspaper applied for a license.
“Mr. ROGERS of Florida. That is correct. The newspapers render a great public service, and if they can continue to render a great public service, if they can increase their public service through the radio field, they should not be discriminated against in that effort."