"comparative" proceeding, however, the Commission must only compare 'alternative proposals and determine which is better. For example, in a "renewal" proceeding, the FCC might have to decide whether a proposal to broadcast no news is in the "public interest"; in a comparative hearing, the Commission has only to compare the "no news" proposal against, say, one for fifteen hours of news a week-and determine which is more in the "public interest.",

The advantages of this latter procedure are clear: essentially, it does not lock broadcasting into a minimal level of mediocrity. If, for example, a nationwide standard of "minimal" public interest operation is established, then most stations in larger communities (with greater advertising resources) will obviously meet that minimum. They will never lose their licenses in a "renewal" proceeding. The comparative proceeding, however, allows a group with an even better programming proposal to win a frequency-to the great benefit of the public. The comparative procedure also permits the flexibility of case-bycase adjudication. And finally, the comparative procedure is essentially a sounder legal procedure, for it adopts the concept of an adversary proceeding. In a renewal proceeding, the Commission has only the choice between the incumbent's programming and nothing, no programming at all.

(2) Competition.-The "comparative" proceeding encourages competition in two important ways. First, it permits entry into the broadcasting market by groups with new and innovative programming. The comparative proceeding permits the natural competitive forces of the marketplace to weed out the "deadwood" and make way for the new. Second, the mere threat of possible entry by competing applicants spurs incumbent broadcasters to improve their performance as a deterrent to potential competition. It is difficult to see how S. 2004's elimination of this competitive incentive to programming improvement is in the "public interest".

(3) Minority groups. As the Kerner Commission reported last year, the communications media have "failed to communicate" to their predominantly white audiences "a sense of the degradation, misery and hopelessness of living in the ghetto." Senate Bill 2004 will almost certainly exacerbate this problem. Most of this country's ghettos are in our largest cities those very cities where all radio and television frequencies are occupied. (There is not one black-owned television station in the country.) Because few minority groups have the $50 million or more necessary to purchase most big-city stations (even if they were available for purchase), the only realistic hope for blacks and other minority groups to reach their own communities through televsion is the "comparative" proceedings. Yet S. 2004 will slam this door in their face. For this reason alone, S. 2004 may easily do more to continue racism in this country than any other single piece of legislation now pending before Congress.

(4) First Amendment.-The First Amendment to the Constitution prohibits Congress from abridging the freedoms of speech and the press. Although the First Amendment is most often used to focus attention on the content of speechwhether it is inflamatory, obscene, libelous, and so forth—it also protects access to the means of communication. Speech cannot be "free" if the speaker is prohibited from reaching his audience by pamphlet, newspaper, soap box, radio microphone, or televsion lens. If Senate Bill 2004 limits the ability of citizens and other groups to acquire and operate broadcasting stations, absent some "compelling" governmental interest, then it may easily violate the First Amendment to the Constitution.

(5) Unnecessary governmental regulation. The comparative proceeding permits citizens groups, at the local level, to formulate broadcasting proposals suitable for their own communities and then use them to compete for existing frequencies. The comparative proceeding, therefore, leaves the initiative for reform at the local level. The FCC is asked only to mediate between competing local applicants. The "renewal" procedure, however, forces the Commission into a supervisory role-in which it must adopt minimal programming standards and apply them to stations across the country. Although the government can and should establish minimum levels of performance, it can never duplicate the variety and diversity of individual action. The comparative proceeding permits experimentation by local groups that can goad the laggards without unnecessary governmental intrusion.

(6) Local bargaining.—In Texarkana, Texas, a number of local organizations approached their local television station and, under the threat of license revocation proceedings at the FCC, induced it to adopt a number of important reforms:

increased minority programming and employment, regular broadcasts about community problems, and periodic consultations with the people. A similar procedure was followed in Rochester, New York. Yet S. 2004 would remove one of the most effective incentives to the station to bargain with community groups: the threat of a competing application. In so doing, S. 2004 might easily cripple the nascent emergence of this constructive form of community involvement and participation in local broadcasting affairs.

It is significant, I believe, that the FCC is officially on record as opposing this legislation. Its members feel deeply enough about it to have presented you with an unusual number of personally prepared statements. Some believe the present procedure if made to work-is best. Others have attempted to fashion compromise positions that give away less than S. 2004. None, however, on the old Commission, offered the Bill their enthusiastic support in its present form. Only one Commissioner does so now, in a most summary and general statement.

The opposition of Congressman Emanuel Celler to this legislation is eloquent and to the point. I believe his views, as Chairman of the House Judiciary Committee, are entitled to special weight. He wrote a constituent, who had urged his support of S. 2004:

"I must advise you that I oppose the point of view expressed in your letter and oppose enactment of the proposed legislation. It seems to me that the measure completely loses sight of the principle, engrafted in the Communications Act and basic to the jurisdiction of the FCC, that the radio and television waves— the frequencies-comprise a finite and precious national resource and are to be managed and licensed only for the benefit of the public and only in the public interest.

"In this view, with which I doubt many would disagree, a frequency is licensed consistently with the public interest only when the best qualified broadcaster offering the best available programming is awarded the license. Anything less than the best available service is patently not in the public interest. "Your proposal to restrict new applicants to situations in which the Commission has already determined that that renewal to the incumbent would not serve the public interest effectively prevents the Commission from ascertaining what the public interest requires. In other words, if the job being done by the incumbent is not so grossly inadequate in the Commission's view as to require that his petition for renwal be denied, then the Commission may never know and would be precluded from finding out whether a superior prospective licensee exists. The effect of such a rule requires little elaboration. Mediocrity would be firmly entrenched; potentially superior service would be ruled out. What is needed, in my opinion, is more rather than less competition for the privilege of providing radio and television programming to the public." Congressional Record, June 25, 1969, p. E5283-84 (daily edition).

The broadcasting industry lobbyists, and other supporters of S. 2004 ought to know that, after the rhetoric is cut away, the net effect of the Bill will be to remove from the people the only thin small reed to which they now cling in their self-defensive struggle against the combined force of the broadcasting industry and the FCC. Its passage will leave a frustrated people with no recourse, except perhaps to engage in more violent protests and other actions that serve the interests of no one.

Conclusion: The potential to govern

The issue before us ought to be stated starkly. It is one of the most serious that is ever likely to come before this body. It is, quite simply, who is to retain the potential to rule America.

I emphasize "potential.” You and I know, if we are honest with ourselves, which segments of the economic and social structure have the loudest voices in the decision-making process in Washington. We know that our government "of the people, by the people, and for the people" has long since vanished from this earth. We know that it has been very largely replaced by a government of the people, by the rich, for the corporations.

But the potential for popular check remains. It remains, however, only so long as the people can obtain education and information, only so long as they can communicate with each other, only so long as they can retain potential control over the mass media of this country. When that final cornerstone of democracy's foundation is removed from them, the America that you and I have known is forever gone.

Just how powerful is big broadcasting in America today? Is it already beyond the check of the Congress and the President? I know it has been too powerful for the FCC to handle. I know the industry seeks even more power over the people and the political process with this legislation. Will it get it?

The American voter has already come to accept the fact that, in Mason Williams' phrase, "The government makes better deals with business than it does with people." Your constituents are cynical. They know intuitively, and talk openly, of what we in Washington can scarcely bring ourselves to whisper. The people have watched their sky go up in corporate smoke. They want their sky back,

They have seen factories squat by the edge of the river and excrete tons of corporate waste into the community water supply. They want their water back.

The people have watched the corporate woodman swing his axe in a cathedral of redwoods, plundering God's works of art for profit. They want their forests back.

They have consumed the harmful food, drugs and cigarettes-it took billions of dollars worth of television advertising to sell them. They want their health back.

They have looked to government for protection; they have learned to expect little in return. Their sky and water and trees and bodies cannot be restored in their lifetime.

But so long as you will preserve the people's potential to rule, so long as you will preserve their potential opportunity to participate in the operation of their mass media, so long as you permit them to keep their hearts and heads intact, there is some hope, however small, that some future generation-perhaps the next-will this potential to rebuild America.

Television is one of the most effective and expensive elements of a political campaign. But the broadcaster not only elects our candidates to public office, he also sets the national agenda of issues they are then permitted to address. How long could any of you conduct hearings, or attempt to pass legislation, if the mass media were to give you a total blackout, and refuse to let you share the public's business with the public? What do we think is important today? What the networks told us during prime time last night.

The people with whom rest the ultimate responsibility for this self-governing nation look to television as their principal source of information, attitudes, moral values, and aesthetic taste. Television can make us a nation of violence and hate, or of love and compassion. It can make us want to go to Mars, or to feed the hungry here on earth. It can condition us to solve our problems by looking outside to the pills and alcohol of the middle-aged and the drugs of the young, or by looking within. It can weaken family ties, or strengthen them. It can help us burn our cities, or rebuild them.'

The broadcaster in America today is, without question, the single most powerful man civilization has ever permitted to roam wild. We have used a very long thread to tether a dinosaur. He finds it restricting and asks that it be removed.

Howard Fast has his Citizen Tom Paine saying:

"I've seen man nailed to a cross, nailed there for God knows how many thousands of years, nailed with lies, oppression, gunpowder, swords. Now someone puts an axe in my hand, and I have a chance to help cut down that cross. I don't pass that chance by."

You gentlemen have that opportunity. But you have been asked, instead, to use the head of the axe to drive yet another nail in the cross. Will you? Two hundred million watch to see.

(Whereupon, at 4:25 p.m., the committee was recessed.)

TO AMEND THE COMMUNICATIONS ACT OF 1934 TO ESTABLISH ORDERLY PROCEDURES FOR THE CONSIDERATION OF APPLICATIONS FOR RENEWAL OF BROADCAST LICENSES

TUESDAY, DECEMBER 2, 1969

U.S. SENATE,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON COMMUNICATIONS,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10 a.m. in room 5110, New Senate Office Building, the Honorable John O. Pastore (chairman of the subcommittee) presiding. LAM AS TH

Present: Senators Pastore and Cotton..

Senator PASTORE. Ladies and gentlemen, we are now ready to continue the hearing on S. 2004.

Our first witness today is Mr. Lee Loevinger, former FCC Commissioner, now associated with the firm of Hogan & Harston in Washington, D.C.

I want to express, Mr. Loevinger, our regret that you were here last time and you could not be accommodated because of the lack of time. We are very happy to have you back here again today. Senator Hollings is here now and wishes to introduce Mr. Loevinger.

Senator HOLLINGS. Mr. Chairman, I appreciate the opportunity to introduce to your subcommittee Lee Loevinger who will testify on behalf of S. 2004 which proposes to alter the current practice under which broadcast licenses are considered for renewal by the Federal Communications Commission. Mr. Loevinger has a noted background as a lawyer, executive, and author. From 1937 to 1941, he was a trial attorney with the National Labor Relations Board. For the following 5 years until 1946 he was with the Justice Department's Antitrust Division. After 14 years of private practice, he returned to head up that department as an assistant attorney general from 1961 to 1963. He was FCC Commissioner from 1963 until 1968, leaving to join the firm of Hogan & Harston in Washington.

Mr. Loevinger's administrative experience includes service as vice president of a Washington investment banking firm, chairman of the board of an oil production investment management company and a business consultant.

Moreover, Mr. Chairman, Mr. Loevinger has been a prolific writer in the field of law with more than 70 articles to his credit. He has won numerous awards and appointive positions of trust and responsibility in the fields of broadcasting, business practice, nuclear development, small business, and antitrust.

Mr. Chairman, I support S. 2004 as I believe that a radio or television station operator should have the right to continue his business provided that he maintains a standard consonant with the public interest. His broadcast license is a public trust; however, it is not fair to require that a licensee's investment be placed in jeopardy at renewal time against anyone who proposes bigger promises to FCC examiners. Traditionally, stations providing satisfactory service have been allowed to maintain their licenses. However, under recent rulings this principle has been placed in jeopardy by a ruling of the FCC in January of this year. It would appear that the continuing threat of loss of license would impose unnecessary and dangerous limitations on management thinking which would endanger independent broadcasting policies. I believe, Mr. Chairman, that consideration of a broadcaster's record which would indicate the probability of continuing desirable performance weighed against promises of performance, even though meritorious, as outlined in S. 2004 would be more closely in line with the public interest.

At this time it is my pleasure to introduce to you Mr. Lee Loevinger. Senator PASTORE. Mr. Loevinger, you may proceed in any way you see fit.

STATEMENT OF LEE LOEVINGER, FORMER FCC COMMISSIONER, HOGAN & HARTSON, WASHINGTON, D.C.

Mr. LOEVINGER. Thank you very much, Senator Pastore. I appreciate the opportunity to appear at all, and can assure you that the delay has caused me no inconvenience or difficulty.

As you know, I have filed a formal statement with the subcommittee, and it is included in the record of the hearings, the printed record at pages 178 to 188 in part 1. That has set forth the relevant details, my background, my present representation, my basic position.

I think there is no point in reviewing that at length with the committee or for you, sir, and I would like to make that part of my present testimony by reference, so that I will make adequate disclosure without repeating the statement, if I may.

In that statement, there are a number of footnotes which contain references and citations to both legal and factual authorities that support the position I take. I think they are best in the printed record without referring to them.

I want to try to summarize informally the points for and against this bill, as I see them, and to give the position which I, and those I represent, take with respect to it.

The first and most basic issue as we see it is the issue of free speech. We believe S. 2004 will protect and encourage freedom of speech in journalism and broadcasting and in the print media.

The licensees that I represent are newspaper publishers, and, therefore, they are peculiarly vulnerable to the problems that have been created by the FCC under its recent procedure, and they are particularly interested in the protection of those rights of free speech and free press that are clearly within the intent of the first amendment. I might say that those rights do not protect obscenity as that has been defined as is made clear by the case of Roth v. U.S. 354, U.S. 476.