shall be granted by the Commision earlier than thirty days following issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof: Provided, That this requirement shall not apply to any minor amendment of any such application or to any application for (A) minor change in the facilities of an authorized station, (B) consent to an involuntary assignment or transfer under section 310(b) or to an assignment or transfer thereunder which does not involve a substantial change in ownership or control, (C) license under section 319 (c) or, pending application for or grant of such license any special or temporary authorization to permit interim operation to facilitate completion of authorized construction or to provide substantially the same service as would be authorized by such license, (D) extension of time to complete construction or authorized facilities, (E) authorization of facilities for remote pickups, studio links and similar facilities for use in the operation of a broadcast station, or (F) authorizations pursuant to section 325(b) where the programs to be transmitted are special events not of a continuing nature, or (G) special temporary authorization for nonbroadcast operation not to exceed thirty days where no application for regular operation is contemplated to be filed or pending the filing of an application for such regular operation or (H) authorization under any of the proviso clauses of section 308 (a).

"(2) Any party in interest may file a petition to deny any application or amendment thereof to which the requirement of paragraph (1) of this subsection applies at any time prior to the day of Commission grant thereof without hearing or formal designation thereof for hearing: Provided, That, with respect to any classification of applications, the Commission from time to time by rule may specify a shorter period (no less than thirty days following the issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof), which shorter period shall be reasonably related to the time when the applications would normally be reached for processing. Such petition shall be served on the applicant and shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant thereof would be prima facie inconsistent with subsection (b). Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a reply in which allegations of fact or denials thereof shall similarly be supported by affidavit. If the Commission finds on the basis of the application, the pleadings filed, or other matters which it may officially notice that there are no substantial and material questions of fact and that a grant of the application would be consistent with subsection (b), it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition which shall dispose of each substantial question presented thereby. If a substantial and material question of fact is presented or if the Commission for any other reason is unable to find that grant of the application would be consistent with subsection (b), it shall proceed as provided in subsection (c).

"(b) Whether or not a petition to deny is filed under subsection (a), the Commission shall examine each application provided for in section 308. If upon examination of any such application provided for in section 308 and upon consideration of any such petition and any reply thereto or such other matters as the Commission may officially notice the Commission shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application.

"(c) If upon examination of any such application, petition to deny or reply thereto or such other matters as the Commission may officially notice the Commission is unable to make the finding specified in subsection (b), it shall formally designate the application for hearing on the ground or reasons then obtaining and shall forthwith notify the applicant and all other known parties in interest of such action and the grounds and reasons therefor, specifying with particularity the matters and things in issue but not including issues or requirements phrased generally: Provided, That, if the Commission finds that by first giving the applicant and other known parties in interest notice of all objections to such application and an opportunity to reply thereto a determination of the application may be expedited, it shall forthwith give such notice and opportunity for reply before formally designating the application for hearing. The parties in interest, if any, who are not notified by the Commission of its action with respect to a particular application, may acquire the status of a party to the

proceeding thereon by filing a petition for intervention showing the basis for their interest at any time not less than ten days prior to the date of hearing. Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate. The burden of proceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that with respect to any issue presented by a petition to deny or a petition to enlarge the issues, such burdens shall be as determined by the Commission.

"(d) When an application subject to subsection (a) has been filed, the Commission, notwithstanding the requirements thereof, may, if otherwise authorized by law and if it finds that there are extraordinary circumstances requiring emergency operations in the public interest and that delay in the institution of such emergency operations would seriously prejudice the public interest, grant a temporary authorization, accompanied by a statement of its reasons therefor, to permit such emergency operations for a period not exceeding ninety days, and upon making like findings may extend such temporary authorization for one additional period not to exceed ninety days. When any such grant is made, the Commission shall give expeditious treatment to any timely filed petition to deny such application and to any petition for rehearing of such grant filed under section 405.

"(e) The stations other than in the broadcasting or common carrier service referred to in subsection (a) are (1) fixed point-to-point microwave stations, but not including control and relay stations used as integral parts of mobile radio systems, (2) industrial radio positioning stations for which frequencies are assigned on an exclusive basis, (3) aeronautical en route stations, (4) aeronautical advisory stations, (5) airdrome control stations, (6) aeronautical fixed stations, and (7) such other stations or classes of stations as the Commission by rule provides.

"(f) The Commission is authorized to adopt by rule reasonable classifications of applications and amendments in order to effectuate the purposes of this section.

"(g) Such station licenses as the Commission may grant shall be in such general form as it may prescribe, but each license shall contain, in addition to other provisions, a statement of the following conditions to which such license shall be subject: (1) The station license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies designated in the license beyond the term thereof nor in any other manner than authorized therein; (2) neither the license nor the right granted thereunder shall be assigned or otherwise transferred in violation of this Act; (3) every license issued under this Act shall be subject in terms to the right of use or control conferred by section 606 hereof."

SEC. 2. Section 319 (c) of the Communications Act of 1934 (47 U.S.C. 319 (c)) is amended by striking out “and (c)" and inserting in lieu thereof “(c), (d), and (e)".

SEC. 3. Section 405 of the Communications Act of 1934 (47 U.S.C. 405) is amended

(1) by striking out "and party" in the first sentence and inserting in lieu thereof "any party", and

(2) by inserting after the fourth sentence a new sentence as follows: "The Commission shall enter an order, with a concise statement of the reasons therefor, denying a petition for rehearing or granting such petition, in whole or in part, and ordering such further proceedings as may be appropriate: Provided, That in any case where such petition relates to an instrument of authorization granted without a hearing, the Commission shall take such action within ninety days of the filing of such petition."

Passed the Senate August 19 (legislative day, August 18), 1959. Attest:

FELTON M. JOHNSTON,

Secretary.

[H.R. 7017, 86th Cong., 1st sess.]

A BILL To amend the Communications Act of 1934 for the purpose of substituting a "pregnant procedure" for the "protest procedure" now provided for by section 309, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 309 of the Communications Act of 1934, as amended (47 U.S.C. 309), is amended to read as follows:

"ACTION UPON APPLICATIONS

"SEC. 309. (a) (1) No application provided for in section 308 for an instrument of authorization for any station in the broadcasting or common carrier services, or for any station within the scope of subsection (d), shall be granted by the Commission earlier than thirty days following issuance of public notice by the Commission of the acceptance for filing of such application or of any substantial amendment thereof; except that this requirement shall not apply to any minor amendment of any such application or to any application for (i) minor change in the facilities of an authorized station, (ii) consent to an involuntary assignment or transfer under section 310(b) or to an assignment or transfer thereunder which does not involve a substantial change in ownership or control, (iii) license under section 319 (c) or, pending application for or grant of such license, any special or temporary authorization to permit interim operation to facilitate completion of authorized construction or to provide substantially the same service as would be authorized by such license, (iv) extension of time to complete construction of authorized facilities, (v) authorization of facilities for remote pickups and studio links for use by the licensee or permittee of a broadcast station in the operation of such station or (vi) authorization under any of the proviso clauses of section 308 (a).

"(2) Any party in interest may file a petition to deny any application or amendment thereof to which paragraph (1) of this subsection applies at any time prior to the day of Commission grant thereof without hearing or formal designation thereof for hearing. Such petition shall be served on the applicant and shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant thereof would be prima facie inconsistent with subsection (b). Such allegations of fact shall, except for those of which official notice may be taken, be supported by affidavit of a person or persons with personal knowledge thereof. The applicant shall be given the opportunity to file a reply in which allegations of fact or denials thereof shall similarly be supported by affidavit. If the Commission, after oral argument if it deems oral argument appropriate, finds that there are no substantial and material questions of fact and that grant of the application would be consistent with subsection (b), it shall make the grant, deny the petition and issue a concise statement of the reasons for denying the petition which shall dispose of each substantial question presented thereby. If a substantial and material question of fact is presented or if the Commission for any other reason is unable to find that grant of the application would be consistent with subsection (b), it shall proceed as provided in subsection (c).

"(b) Whether or not a petition to deny is filed under subsection (a), the Commission shall examine each application provided for in section 308. If upon examination of any such application and upon consideration of any such petition and any reply thereto, the Commission shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application.

"(c) If upon examination of any such application the Commission is unable to make the finding specified in subsection (b), it shall forthwith notify the applicant and all other known parties in interest of the grounds and reasons for its inability to make such finding other than the grounds and reasons specified in any petition to deny the application filed under subsection (a). Such notice, which shall precede formal designation for a hearing, shall advise the applicant and all other known parties in interest of all such other objections made to the application as well as the source and nature of such objections. Following such notice, the applicant shall be given an opportunity to reply. If the Commission, after considering such reply and any petition to deny the application filed under subsection (a) as well as any reply thereto, shall be unable to make the finding specified in subsection (b), it shall formally designate the application for hearing on the grounds or reasons then obtaining and shall notify the

applicant and all other known parties in interest of such action and the grounds and reasons therefor and shall specify the issues to be heard. Any party in interest who is not notified by the Commission of its action with respect to a particular application may acquire the status of a party to the proceeding thereon by filing a petition for intervention showing the basis for its interest at any time not less than ten days prior to the date of hearing. Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate. The burden of proceeding with the introduction of evidence and the burden of proof shall be upon the applicant, except that, with respect to any issue presented by a petition to deny or a petition to enlarge issues and specified by the Commission, both such burdens shall be as determined by the Commission.

"(d) The stations other than in the broadcasting or common carrier service referred to in subsection (a) are (1) fixed point-to-point stations, but not including control and relay stations used as integral parts of mobile radio systems, (2) industrial radiopositioning stations for which frequencies are assigned on an exclusive basis, (3) aeronautical en route stations, (4) aeronautical advisory stations, (5) airdrome control stations, (6) aeronautical fixed stations, and (7) such other stations or classes of stations as the Commission by rule provides. "(e) The Commission is authorized to adopt by rule reasonable classification of applications and amendments in order to effectuate the purposes of this section."

SEC. 2. Section 405 of such Act (47 U.S.C. 405) is amended to read as follows:

"REHEARINGS BEFORE COMMISSION

"SEC. 405. After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto, or any other person aggrieved or whose interests are adversely affected thereby, may petition for rehearing; and it shall be lawful for the Commission, in its discretion, to grant such a rehearing if sufficient reason therefor be made to appear. Petitions for rehearing must be filed within thirty days from the date upon which public notice is given of any decision, order, or requirement complained of. No such application shall excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. The filing of a petition for rehearing shall not be a condition precedent to judicial review of any such decision, order, or requirement, except where the party seeking such review (1) was not a party to the proceedings resulting in such decision, order, or requirement, or (2) relies on questions of fact or law upon which the Commission has been afforded no opportunity to pass. The Commission shall enter an order, with a concise statement of the reasons therefor, denying a petition for rehearing or granting such petition in whole or in part and ordering such further proceedings as may be appropriate; and in any case where such petition relates to an instrument of authorization granted without a hearing the Commission shall take such action within ninety days of the filing of such petition. Rehearings shall be governed by such general rules as the Commission may establish, except that no evidence other than newly discovered evidence, evidence which has become available only since the original taking of evidence, or evidence which the Commission believes should have been taken in the original proceeding shall be taken on rehearing. The time within which a petition for review must be filed in a proceeding to which section 402 (a) applies, or within which an appeal must be taken under section 402 (b), shall be computed from the date upon which public notice is given of orders disposing of all petitions for rehearing filed in any case, but any decision, order, or requirement made after such rehearing reversing, changing, or modifying the original order shall be subject to the same provisions with respect to rehearing as an original order."

55507-60-2

Hon. OREN HARRIS,

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., April 15, 1960.

Chairman, Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice concerning the bill (H.R. 11341) to promote the public interest by amending the Communications Act of 1934, to require a public hearing before the original granting of broadcast licenses, to regulate "payoffs" and "swap-offs" between applicants for such licenses, to grant authority to suspend such licenses, to make more effective the requirement regarding announcements as to broadcast matter which is paid for, to prohibit certain deceptive practices in the case of quiz programs, and for other purposes.

Section 309 of the Communications Act of 1934, as amended (47 U.S.C. 309) authorizes the Federal Communications Commission to grant without a hearing an application for a permit or license if it finds that public interest, convenience, and necessity would be served by the granting thereof. Section 1 of the bill would amend section 309 to require the Commission to hold a public hearing in the area involved before granting a broadcast station license, a construction permit, or modification of a license or permit. Section 1 would also amend section 309 so as to prohibit one applicant for a license or permit to pay another applicant to withdraw the latter's application unless approved by the Commission and only if the proposed payment is limited in amount to legitimate and prudent expenditures in prosecuting the application. Section 1 would further amend section 309 by declaring "swap-off" to be contrary to the public interest, convenience, and necessity, the term "swap-offs" meaning any arrangement whereby an applicant for a license or permit, in return for the withdrawal by any other applicant for such license or permit, agrees not to file an application for, or to withdraw as an applicant for, any other license or permit.

Inasmuch as the proposed amendments of section 309 would primarily affect the operations of the Federal Communications Commission, the Department of Justice defers to the views of the Commission concerning their enactment.

Section 312 of the Act (47 U.S.C. 312) authorizes the Commission to revoke station licenses on certain specified grounds. Section 2 of the bill would amend section 312 to add as a ground for revocation the violation of certain sections of title 18, United States Code; namely, section 1304 (broadcasting of lottery information), section 1343 (broadcasting of schemes to defraud), and section 1464 (broadcasting of obscene language). Section 2 would also amend the section so as to authorize the Commission to suspend (as an alternative to revocation) a station license for a period of not more than 10 consecutive days for (1) false statements in the application or in any statement of fact required pursuant to section 308, (2) conditions which would warrant the Commission in refusing to grant a license on an original application, (3) failure to operate according to the terms of the license, (4) violation of or failure to observe provisions of the act or rules or regulations authorized by the act, (5) violation of cease and desist orders, and (6) violation of sections 1304, 1343, or 1464 of title 18, United States Code, referred to above.

In his report to the President on "Deceptive Practices in Broadcasting Media" (See H. Rept. 1258, 86th Cong., pp. 61–90), the Attorney General indicated that the revocation of licenses, the only express sanction now authorized under the act, was too drastic and that less severe sanctions should be authorized, including temporary suspension of licenses. The length of time during which suspension should be authorized involves a question concerning concerning which the Department defers to the views of the Federal Communications Commission. Section 3 of the bill would amend section 317 of the act to require announcement by the person in control of a broadcasting station of any payment made or accepted for any matter broadcast, including the name of the person making such payment, but the person in control of the broadcasting would not be required to make such an announcement if neither he nor any officer or employee of such person had knowledge of such payment or lack of such knowledge was not due to failure to use reasonable diligence. The person who makes the announcement would not be held to have violated the section if the announcement so made is false, provided he establishes that he made the announcement in good faith in reliance upon information furnished by the person making the payment. Violations of the section would presumably be subject to criminal penalties under section 501 of the act.