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many us, whether or not it is necessary to put this down in black and white so that the Commission is not going to have to be concerned, because here it is in the bill, and Congress itself has spelled it out; and then the courts likewise will have some basis on which to stand.
Mr. BAKER. I think as you will note from the statement of Chairman McConnaughey, our position is we do not believe that the Commission has discriminated.
If the parties believe we have discriminated, then I think the language which is here raises a serious question because there is no definition of discrimination which we think either the Commission or the courts would be able very well to interpret.
We have explained in the comments that Mr. McConnaughey read why we believe that it would be difficult for the Commission to take this language and reach a conclusion as to just how they were supposed to apply the statute with respect to newspapers.
The courts have not found the Commission has discriminated against them, except to the extent that newspaper ownership in certain instances must be a factor to be taken into account and weighed along with all of the other factors where two parties each are requesting a television or radio station and each insists he is more qualified, and that an operation by him would be more in the public interest.
The Commission has in fact granted radio and television applications of newspapers. It has at times found, too, that certain aspects of the qualifications of the parties were outweighed where they did not own newspapers. As has been pointed out here, there have been comparative situations in which, although a competing applicant was not interested in other media and did not have other newspapers, it still was not found to be the best qualified. Examples of this are the cases in Tampa and Miami. The Commissioners found that other factors justified granting the application to the newspaper applicant over a nonnewspaper applicant.
Mr. HESELTON. Will the gentleman yield?
Mr. HESELTON. I want to be sure that I have your illustration correctly. You refer to the Tribune Co. case at Tampa of August 6, 1954, and the Biscayne Television Corp. (Miami) January 20, 1956.
Mr. BAKER. That is correct. There is also one additional case in Tampa which I would call your attention to, a case recently in the court of appeals.
There was a case brought to the court of appeals in which there were 3 applicants, 2 of which had newspaper interests in the city of Tampa, and 1 did not. The one that did not have newspaper interests was found not as well qualified. The choice was just between the two which had newspaper interests.
Mr. HESELTON. My question was to establish for the record the two cases to which you referred.
Mr. BAKER. Those were in the cities of Tampa and Miami.
Mr. BEAMER. My interest has arisen because of the fact that there are two television stations in the State of Indiana either owned or controlled by newspapers.
Now, I have been personally opposed to any monopolistic trends that might occur in this country.
I have the feeling that there should be no monopolies. And some of those are in my own particular district.
In an adjoining district-I am quite sure where you live in Fort Wayne, where they had hearings—if I have this correct—I know that it was the sentiment of some of the people and they felt, at least the people felt, that the Communications Commission definitely denied two cases, one was in Fort Wayne, WGL, where the News-Sentinel there definitely was denied the TV grant because of newspaper ownership and, No. 2, James R. Fleming, a partner of Paul McNutt, publisher of the Journal-Gazette of Fort Wayne—they likewise, as is shown by the record, also were denied a grant because of newspaper ownership.
I am not referring to any cases pending.
Mr. BAKER. I was going to say, inasmuch as those cases have been decided and since the records are there, I would not feel that I am under any handicap in talking about them.
As an actual matter of fact, the facts with respect to the newspaper, the News-Sentinel case, where that an examiner found that, among other things, the newspaper interest of the News and Sentinel was a factor, and it outweighed certain other advantages to that applicant.
The News and Sentinel did not take exception to the examiner's decision and take it to the Commission and therefore the Commission never itself specifically passed on the weight to be given to that factor. Had they taken the case to the Commission, no one can tell what the decision would have been.
With respect to the other case, as to the factor of newspaper ownership, if you will read the decision in that you will find that both applicants had interests in mass media communications. One applicant had a number of television and radio stations around the State. The other applicant, Mr. Fleming and Mr. McNutt, had newspaper interests.
The Commission found on the basis of those, there was a slight preference to be made in favor of the newspapers, but found that it was insignificant.
The factor which they did take into account was a different factor. That was with respect to the past practices of the two partners in their ownership of controlling stock in the newspapers, and their entering into certain agreements which the Commission felt were against the public interest.
In other words, it was not a question of the specific ownership of newspapers, but specific practices of the parties.
Whether those factors are valid or not, are, of course, at the present time in the court, and it will be determined by the court whether or not the Commission was justified in considering those practices of such importance as to outweigh the balance against one applicant in favor of another.
I do not believe that the latter case can be considered as any discrimination of any description against a newspaper.
Mr. BEAMER. Of course, as to the decision on the part of the Commission, if you find for a newspaper, then there is still liable to be a feeling of discrimination. So there are two phases to it.
Mr. BAKER. I must agree with you, that any time there is a decision, there is that.
Mr. HARRIS. Will the gentleman yield?
Mr. HARRIS. As I understand you, Mr. Baker, this particular case is on appeal to the courts.
Mr. BAKER. It is in the courts, yes. Mr. HARRIS. Does the appellant charge in this appeal that there is discrimination due to the fact that it is a newspaper owner?
Mr. BAKER. No; they do not, sir.
The burden of the appeal was that it was an arbitrary abuse of discretion on the part of the Commission and that it reflected adversely on the two partners in the application. I mean, it was not a matter of discrimination, but a question of whether or not these practices which have been found to exist, relying on the antitrust laws
Mr. HARRIS. In connection with the particular question we have here, would that have arisen if this bill had been enacted; would that have been involved in this appeal at all?
Mr. BAKER. I do not believe it is involved. In other words, I do not believe that this bill, if it had been passed, would affect the outcome of that case, because the provisions of the Communications Act also state that the antitrust laws shall specifically apply.
Mr. BEAMER. The News-Sentinel case, however, was not appealed!
Mr. BAKER. It was never appealed. No exceptions were taken to the examiner's initial decision to the Commission.
Mr. BEAMER. It is true, though, that the examiner reported that that was a part of his report, and he did not see the need for the Commission giving additional time and space to it-I mean, to grant it to a newspaper. In fact, in the statement I have here from the owners, it is stated very definitely that they were denied a TV grant because they were newspapers.
Mr. BAKER. There is no question about newspaper ownership being a factor, as I just said.
In the Johnston case, which the court of appeals decided with respect to the Commission's duties under the law, it is required that where one of the applicants makes a request for a finding and an interpretation on a certain difference between the two parties, the Communications Commission must examine the facts and evaluate them.
The Commission has in the past and is in the present evaluating the factor of newspaper ownership, but the Commission has always found there that there are some advantages and some disadvantages to newspaper ownership, and it has to weigh those in the light of each case. In some instances the Commission has found that the advantages are in favor of the newspaper which justified the granting, while in others it has found that the disadvantages did not justify the granting as compared to the other applicants.
Mr. BEAMER. Mr. Chairman, I could prolong this with many instances, and quite a few other cases throughout the United States.
I merely bring this up as one particular instance. I think others will probably bear out the point Mr. Baker has raised and try to point out what the views are going to be as to the advantages or disadvantages, but unfortunately, to me it seems that any one industry should be put to a disadvantage due to the fact that it happens to be in that particular type of business. I would hate to be penalized by having someone say,
“You cannot do this, because you are a farmer.” I wonder, on the other hand, if they could not think of it as an advantage.
I think that was the intent, if I remember correctly, that was very much the intent of the members of the committee and I believe of the Congress, as expressed, and I shall present that later on.
That, I believe, Mr. Chairman, is all I desire to present at this time. I will want to bring that to the committee's attention later on.
And, I will yield the floor, because there are many other things that we could discuss. I do not want to encroach upon the time of the committee too long.
Mr. HARRIS. It is the purpose of the gentleman to appear as a witness?
Mr. BEAMER. That is correct.
Mr. HESELTON. Will you furnish to the chairman, for his examination, to go into the record if he chooses, when the Commissioners each took office?
Mr. BAKER. Certainly, I can furnish that. It is already in a report and we can further excerpt it and bring it to this specific committee.
(The information requested is as follows:) The present Commissioners took office on the following dates : George C. McConnaughey, October 4, 1954; Richard A. Mack, July 7, 1955 ; Rosel H. Hyde, April 17, 1946; E. M. Webster, April 10, 1947; Robert T. Bartley, March 6, 1952; John C. Doerfer, April 15, 1953; Robert E. Lee, October 6, 1953.
Mr. HESELTON. This opinion of the Commission with reference to these bills, was adopted by the Commission on November 9, 1955; is that correct?
Mr. BAKER. That is correct.
Mr. BAKER. I am afraid I cannot answer that accurately. I am not certain whether there was one Commissioner who did not express an opinion on it. I think I would have to check into that. My belief is that there were either 6 or 7 of them. In other words, there may have been one who dissented. I would have to check that. I will furnish that for the record.
Mr. HESELTON. Can Commissioner Webster answer that question !
Mr. WEBSTER. I would have to give the same answer, Mr. Congressman. There also may have been an absentee. So I have no record in front of me, but that can easily be obtained and inserted in the record.
Mr. HESELTON. Do I understand you correctly that you state that there may
have been one who did not concur? Mr. WEBSTER. There may have been an absentee. I do not have the record in front of me. The minutes of the meeting will show whether it was unanimous, or who voted for it, who objected to it, or what not.
Mr. HESELTON. I would like to have that in the record.
(The minutes referred to follow :)
MINUTES OF THE FEDERAL COMMUNICATIONS COMMISSION
Minute No. 384-A-55, Commission meeting (general matters), November 9, 1955,
10:50 a. m. Present: Commissioners McConnaughey, hairman; Webster, Bartley, Doerfer, Lee, and Mack.
At a session of the Federal Communications Commission held at its offices in Washington, D. C., this date, the above-named Commissioners being present, the Commission by unanimous vote took the following actions on general matters : Agenda item No. 1. Approved the following minute :
Minute No. 373-A-55, Commission meeting of November 2, 1955, on general matters. Agenda item No. 2. Adopted comments, FCC 55–1108, on H. R. 7174, a bill to authorize payment to Lucy Rolandone for injuries incurred in an accident involying a Federal Communications Commission vehicle and another vehicle.
Agenda item No. 3. Adopted comments, FCC 55–1109, on H. R. 6968 and H. R. 6977, bills to amend the Communications Act with respect to its application to persons connected with any medium primarily engaged in the gathering and dissemination of information.
Agenda item No. Adopted letter, FCC 55–1110, to the Honorable John L. McClellan, United States Senate, with further reference to a letter dated October 5, 1955, requesting an up-to-date report on fees charged for licensing by the Federal Communications Commission.
Agenda item No. 5. Adopted letter, FCC 55–1111, to the Honorable George W. Malone with reference to a telephone inquiry of November 7, 1955, concerning the proposed installation of a low-powered military TV cochannel booster by the Department of the Navy for the purpose of providing TV service for the Hawthorne, Nev., area.
MARY JANE MORRIS, Secretary. Mr. HESELTON. Were you personally at the meeting, Mr. Baker? Mr. BAKER. Yes; I was.
Mr. HESELTON. How long did the Commission deliberate on this at the conference?
Mr. BAKER. I cannot tell you from recollection.
Mr. HESELTON. Could you give us any idea as to whether it was a matter of 2 or 3 hours or a matter of 2 or 3 minutes?
Mr. BAKER. I think it was longer than 2 or 3 minutes, because I recall that there were a number of changes by various Commissioners who had had this circulated to them a week or two before
and they felt that there should be certain changes in the language. That is, as to the best method of commenting on this bill. I do recall that we had to make a number of changes in language to suit the Commission. I do not think they were of substance in the sense that the minds of the majority of the Commissioners were in agreement with the basic substance with regard to this type of comment.
Mr. HESELTON. Were all of the changes suggested incorporated in these comments?
Mr. BAKER. All that the majority of the Commission felt were justified. I cannot recall specifically. I just recall that there was the necessity of changing the language to comply with what the Commission itself decided
Mr. HESELTON. Can you give us any statement as to how much time was devoted to the question of the Commission's opinion on these bills at that meeting?
Mr. BAKER. No, I do not believe I can.