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The CHAIRMAN. Yes.
Mr. CALDWELL. Then I will not skip over two or three items that I might possibly skip over otherwise.
Another difficult question that the commission has to deal with is the variety of questions of evidence. They might strike you as comparatively unimportant, but in a hearing that happened about a month or two ago between two broadcasting stations one station filed 170,000 affidavits in evidence which had been obtained from listeners. Without trying to pass on the questions of admissibility of evidence that come up in that type of case, the mere question of filing and taking care of those documents is bewildering. The only remedy I can suggest is to require every station to appeal so that we can cart all these documents over to the clerk of the Court of Appeals and let him file them. Otherwise the commission must carefully preserve them under the law.
Senator WAGNER. Were they read? Mr. CALDWELL. As former attorney for the commission, I must stand on my constitutional rights.
Senator WAGNER. All right. I will withdraw the question.
Mr. CALDWELL. They came in in packing boxes. I think they were brought in by airplane from the station.
The present organization of the commission consists of the secretary's office, a legal division, and an engineering division. I believe that the future organization of the commission should have those three departments and perhaps more to handle all small matters, and let the commission be free for the important and the controverted ones. That is not exactly true at the present time.
The only one of those departments that is on a fair way to real development and I say this out of regard to my successor and not to myself-is the legal division, which, under the generous appropriation made by Congress last March has been able to get capable assistants and is going along and handling this work to the satisfaction of every one.
The engineering division has to rely on the charity of the Army and the Navy in furnishing good men for temporary use.
Commander Craven who was in charge of one important branch of engineering, the short waves, was withdrawn by the Navy a month or two ago. Captain Hill, in charge of broadcasting, was loaned by the Army and is to be withdrawn on June 1. Both men have rendered service of inestimable value. The very able chief engineer, Dr. J. H. Dellinger, was loaned by the Bureau of Standards and he had to return several months ago. That sort of thing is manifestly not sound.
Senator Dill. Do you understand that the law makes it impossible for the commission to appoint its own engineers?
Mr. CALDWELL. I do not; but every effort has been made to get good men on a permanent basis. Salary limitations stand in the way, as does also the temporary character of the commission. The commissioners have communicated, I think, with every likely source of information as to available men in the country and have not yet been able to get the type of men they need. The assistance they have had from the Army and Navy has been of the very best sort, but the temporary character of such arrangements stands in the way of progressive development in this important department of the commission's work.
Senator Dill. You mean, under the classification act they can not pay enough to attract engineers from the outside?
Mr. CALDWELL. Yes. I urge that the same generous provision be made for the engineering division as was made for the legal division.
I shall leave it to the commission to speak about the secretary's office. It may or may not desire to recommend that that office be taken out of the classification act.
The commission so far has gotten out its regulations in the form of what it calls general orders from time to time. These are sometimes regulations and sometimes other matters. It is holding hearings practically every day. I do not know the total nuriher of hearings, but before last July I think there were a total of 51, and since that time there have been around 400.
You may be interested in knowing the present number of stations of each kind.
What are called limited public stations total 309. That includes stations of the type operated by the Radio Corporation of America, the Mackay interests and the Universal Wireless Communication Co. They are limited in that they can only communicate between certain points, but they are under the public-service obligation.
Then there are 328 limited commercial stations which include the Alaska canneries, geophysical stations, and that sort of thing.
There are 70 general public stations, which means for the most part stations engaged in communication with ships.
There are 193 experimental stations, which include 26 television stations in the short-wave bands, and 16 stations engaged in relay broadcasting, sending programs over long distances to be disseminated by a broadcasting station in foreign parts or at distant points.
There are 16,928 amateur stations, 28 technical and training-school stations, 1,934 ship stations, and 615 broadcasting stations, making a total of 20,405.
There are any number of applications pending now for additional stations on the part of both present licensees and new applicants.
The commission does not have to state the grounds for its decision in any case unless a case is appealed to the Court of Appeals. If the appellate procedure now provided by the act were taken away or severely limited I should think it might be a wise thing to require, in at least certain types of cases, that a minute be made of the reasons for decision. Otherwise I think its present procedure is working satisfactorily. Because of its being a commission every act has to be shown by its minutes, and is shown in the way that I illustrated by the document I handed to you this morning.
One tremendous problem now is due to the short period of licensing. I feel that while I sympathize with the purpose of Congress in preventing the creation of vested rights, I think the present system is working against that. It means that the courts, in order to give effect to the appeal provisions, are likely to find some greater continuing right, although they do not call it a property right, than they would otherwise. I feel that the present act gives the commission power, after hearing, to change the terms of any license or to revoke a license for cause during its period, and therefore the vested right danger is thoroughly met. The present situation is that the commission has to pass on all applications from all of these stations in the broadcasting band every three months, and the clerical work in con nection with that is an almost impossible job. So much detail is required and so many problems arise that not sufficient time is left for investigation or hearings. that should be held on some of the applications.
Senator Dill. Do you think that three years is a proper time for the length of the license period eventually?
Mr. CALDWELL. I think it is. I would not want to urge a period longer than that.
Senator Dill. The question I had in mind was whether it was too long.
Mr. CALDWELL. The periods that I hear most frequently suggests are one year and three years. Either one will remedy the commission's administrative problem. A year's duration would be a great improvement over the present period. .Senator Dill. I am inclined to think so. Mr. CALDWELL. I do not see much choice between the two.
All other the station licenses have to be renewed every year, and that, of course, presents somewhat of a problem, but nothing compared with this administrative difficulty of handling nearly 700 applications for broadcasting every three months that constantly jams up the work of the commission's offices.
The passing of ordinances by cities and of laws by States on radio create a lot of legal problems in a class by themselves. The legal division of the commission is handling the matter very well at present by advising with cities and States on ordinances and laws. There are a lot of them that are clearly unconstitutional and a lot of others that may cause unnecessary clash of authority later.
There are constant international conferences on communications. There was a conference in Prague last month in which we were represented; and the commission ought to be represented in every international conference. There is to be a conference on safety of life at sea, in London, next month; one in the fall at The Hague, and So on. Every three or four months there is an important international radio conference.
I come now to a list of suggested amendments to the bill that is before you as well as to the Radio Act of 1927, that is at present in force.
In presenting this list, I want to make it clear that while I am chairman of the American Bar Association Committee on Radio, I can speak for that committee only in so far as it has agreed on certain points, and none of the committee can yet speak in behalf of the whole association. Nothing has been authorized and can not be until a report from us is presented to its annual meeting next October. We have not yet made a final report. We had a meeting in December at which we were fortunate in having Senator Dill present, and we reached tentative agreement on certain propositions which have been elaborated by correspondence, but still we are not in definite agreement on many points.
Therefore, unless I mention to the contrary, what you will hear is my personal opinion. Senator Dill. And not the opinion of the bar association?
Mr. CALDWELL. Not the opinion of the bar association; although I should say that there are very few points on which the members of the committee differ seriously.
At present we have only four members: Mr. Fred Fernald, of Boston; Mr. Cassius Gates, of Seattle, Wash.; and Mr. Edward A. Zimmerman, of Chicago. The fifth member was Mr. Robert Swain, of New York, who resigned about a month ago.
Senator PITTMAN. Have these others given special study to this question?
Mr. CALDWELL. I have never met Mr. Gates and have had to conduct my negotiations with him by correspondence. I am under the impression, from correspondence and from the fact that I know he has represented some broadcast stations, that he has given study to it and is familiar with radio. I am not in position to make any very broad statements as to his experience.
The other two gentlemen, I think, have learned about radio largely for the first time when they were put on the committee; so that I may be in the embarrassing position of having to accept responsibility for some of their views as well as the ones that I am about to express to you. Yet they are showing independence of judgment, and I am trying to inform them first before asking them to take any definite propositions.
Referring to Senate bill No. 6, in the opening paragraph, the last sentence, you provide that the act shall not apply to the transmission of intelligence by wire or wireless wholly within one State.
The transmission of wireless wholly within one State will always, I think, be a matter of interstate commerce because of the necessary results of interference. This provision clashes, I believe, with the provisions of a later section. In other words, a communication from Chicago to Springfield, Ill., by radio, will cause interference at Indianapolis, and will be received there whether they want to receive it or not.
Senator KEAN. Is there not a constitutional question involved there?
Mr. CALDWELL. I believe not. I think under the authorities you have plenary power to regulate such radio as interferes with interstate commerce.
Senator BROOKHART. This says, wholly within the State. If it is wholly within the State
Senator GLENN. Your idea is that there is no such thing as that?
Mr. CALDWELL. There is no such thing physically. That communication from Chicago will go to Jackson, Mich., to Indianapolis, to Milwaukee, besides going to Springfield.
Senator BROOKHART. I can not see that this wording would have any bearing on that sort of a proposition.
Mr. CALDWELL. It would seem to me that you ought not to limit your authority, or suggest that you do so by that language. The communication from Chicago to Springfield, Îll., will travel beyond that and have an interference range perhaps as far as New Orleans.
Senator BROOKHART. That is not wholly within the State, then. Your idea is that it is practically physically impossible to have anything of this kind wholly within a State?
Mr. CALDWELL. Yes. Further than that, as far as Springfield is concerned it may be intelligence. Down in New Orleans it may be interference in the form of a whistle. It will not be the transmission of intelligence; it will be a disagreeable whistle that will interfere in the operation of some other station. Also the operation of a send
ing station in Chicago will keep people in Chicago and its vicinity from receiving stations in other States on adjacent channels.
The CHAIRMAN. I think we might limit that to wires within the State and exclude wireless.
Mr. CALDWELL. You have covered the wireless part of it very well in clause B as it stands.
On line 26 of page 2 I think it would be well if you add aircraft to the word "vessel, so that it will read "any vessel or aircraft of the United States," and not limit the licensing power, as you do in the next subclause, to aircraft within the United States. In other words, an aircraft presents the same problem as a vessel, and you ought to have power over an aircraft wherever it goes, whether within our jurisdictional bounds or not, if it is an American aircraft.
I have already discussed, it seems to me sufficiently, my views on the inclusion of broadcasting stations within the term "common carrier.” I do, however, want to call your attention to the decision in Frost against Railroad Commission, 271 U. S. 583, in which the Supreme Court held that a California statute was invalid that attached as a condition to a license to use a public highway that the concern involved must become a common carrier when it was previously a private carrier.
A broadcasting station, under the present situation, is actually a private carrier; and there is therefore a constitutional doubt that I think should be taken into consideration.
Senator Dill. However, there is a difference between a broadcast station and a highway traffic machine.
Mr. CALDWELL. Yes; although there is some analogy in principle, As I have observed the tendency of the Supreme Court's decisions recently, it has been rather against statutes attempting to affect a business for the first time with a public interest. I mention that without meaning to pass on the correctness of such decisions one way or the other; I have simply observed that tendency in the decisions.
Senator PITTMAN. Does the Supreme Court state that any of these broadcasters were private institutions if they receive any character of compensation for their work?
Mr. CALDWELL. That was not a broadcasting case, Senator; that was a case in which a trucking company had been doing a private concern's work.
Senator PITTMAN, Yes; I understand.
Mr. CALDWELL. I am not sure that I get your question. Up to the present no broadcasting station has been put under any such obligation either by any express provision of the law or by any decision of the commission.
Senator PITTMAN. That is what I had in mind.
Do you think it would be unconstitutional to place any private broadcasting concern under the regulations of a common carrier if was charging any form of compensation for its services?
Mr. CALDWELL. I do not think that ought to be held unconstitutional. I would be against it as a matter of policy. On the other hand, I still think that that Supreme Court case indicates a tendency and even furnishes somewhat of an analogy. As a matter of policy I do not think broadcasting stations should be put under that obligation, because I am afraid of the effect on this service to the public, as regards quack advertisers and other things the public does not want to receive as against what they do want.