Senator PASTORE. Of course. So it is the rich contesting the rich. I would hope that somebody would bring out how we are helping the man on the street.

Mr. MOORE. I think the public can profit from this competition and without it I think that you are going to have a continual deterioration in service and increase in profits. This competition is the only tool we have that is effective to improve public service in these major markets. I go on here to say the immense profitability of a major television channel is a direct result of the monopoly position conferred by virtue of its public license. Congress might well have treated public licenses as public utilities and have provided for direct government regulation of rates and service.

It might have required that the channel be shared by several licensees. However, recognizing that it was dealing with sensitive issues of free speech and cultural development, Congress chose an alternative means of protecting the public. The means used was short-term licenses and continual review of performance in competition with the ideas. and proposals of others.

Chief Justice Burger recently described the status of licensees this

way:

The infinite potential of broadcasting to influence American life renders somewhat irrelevant the semantics of whether broadcasting is or is not to be described as a public utility. By whatever name of classification, broadcasters are temporary permittees-fiduciaries—of a great public resource and they must meet the highest standards which are embraced in the public interest concept. Earlier he compared the renewal process with the reelection of a public official, stating:

On a renewal application the "campaign pledges" of applicants must be opened to comparison with "performance in office" aided by a limited number of responsible representatives of the listening public when such representatives seek participation.

Senator PASTORE. Do you think that would be a good idea for members of the Supreme Court as well?

Mr. MOORE. I think the judicial function is a little different.
Senator PASTORE. Why?

Mr. MOORE. I think the Justices of the Supreme Court have not been given a license and authorized to charge the public for their services.

Senator PASTORE. Neither has the Senate been given a license. You know there are some States that feel that a man ought to come for election, a member of the judiciary, like the Members of the Congress. There are States that believe you should give them life tenure, in order to make them independent and render proper service.

But you know that sometimes even this independence leads to abuse. I mean, I'm just taking this up, that you can take these rationalities and you can argue them both ways. If the shortness of the term and the unreliability of returning is the best proof of public service, then we ought to apply it to every phase of Government, including even the judiciary, if you want to be consistent.

Mr. MOORE. I think it would be an unwise thing to have the public sitting in review on the opinions of Justices on issues between private parties in this country.

Senator PASTORE. Well, they review the opinions and decisions of Senators, and we decide peace and war. What is the difference? We decide the survival of the country and the survival of the world.

I agree with you, we ought to be brought to account. But I mean there are distinctions to be made. I mean, you just can't throw out these generalities and say this justifies the situation. That is the only point I make. I know other people will disagree with me on this.

I'm not for reelecting judges. But a lot of people think they should be. When Justice Burger takes the position that a Senator runs for election and that keeps him honest, why can't we have the same rule with some of the Justices that have been criticized for some of the things they have done and you can't touch them with a 10-foot pole? Mr. MOORE. I think Justice Burger was talking about broadcast stations. He sat for many years on the court which reviews the FCC, and I think his judgment is probably pretty good on what keeps broadcast

honest.

I might say we have a challenge going in New York, and we have had a really impressive display of improved public service as a result of that challenge. I want to go on now. After this opinion was issued, Judge Burger called it back and added this:

After nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty.

Senator PASTORE. Taking the case in Jackson, that is a little different than the situation we are talking about. There were no competing applicants there. What Justice Burger actually said was the Commission should have revoked that license.

And by the same token, one of the Pacifica stations allowed a station employee at 3 o'clock in the morning to play a record with four-letter words. Serious questions about renewing that license should be taken into account, in my judgment. These are the type of situations in which the FCC could act more vigorously.

Mr. MOORE. Let me comment on the Jackson case. I was an attorney in that case, so I'm familiar with it. That was a case brought by the Office of Communication of the United Church of Christ. I have no idea how much that case has cost up to this point, but certainly it is in six figures.

It is unrealistic to expect that public groups who are not applying for a channel, who are simply dissatisfied with the service, can raise funds amounting to six figures, hire attorneys, prosecute appeals. This case has already taken 6 years and the station is still on the air. I don't know how long it will last.

The average member of the public can't fight a WLBT case and the only way the public interest can be protected is by somebody that has an economic incentive to go in and compete for the channel.

Senator PASTORE. Do you really mean that literally? What is wrong with the FCC doing the job it should do? That's what they are being paid for. Why should a citizen come in, a citizen has a right to complain and should complain, but why should the burden be put on the back of a citizen when we have the FCC whose obligation it is to supervise and to make sure that they live up to the responsibility of the law? Why should they remove themselves from this responsibility and say now you, the Church of Christ, you do it, you carry the burden.

This is a burden that should be carried by the FCC. That is their job.

Mr. MOORE. The FCC has only four employees, as I understand it, who are available to investigate bad programing. There is something over 7,000 licensees. I think these four employees work in pairs.

So the idea that the FCC can do anything about bad programing on stations is visionary unless some way is found to finance it. As a matter of fact, the FCC has never in my memory, certainly not in over 20 years, revoked a license for bad programing. The only effective way it can be done is by public challenges.

Senator PASTORE. I don't want to get into a debate with you, sir, but the fact still remains if you allow entrepreneurs to come and file, right or wrong, the fact still remains the FCC has to find the personneĺ to hear all of these cases.

If you are talking about personnel, it is going to apply whether you pass S. 2004 or whether you don't pass S. 2004, because the minute you get new applicants for a renewal, you have to get somebody to hear the cases, you have to have a hearing officer, and after he adjudicates it, you have to go before the FCC; then you take an appear from that. I mean, if you are talking about the shortness of personnel and that being responsible for some of the abuse, you are going to have the shortness of personnel no matter what you do, unless you give them more personnel. But it doesn't prove the point, that if you allow other people to apply for the license, that you don't need the personnel.

Of course, you will need them. It is up to the Congress to give them the personnel. And we have been just as much at fault as anybody else. You try and get it. You try and increase the personnel. See how far you get.

Mr. MOORE. I have given up hope.

That the Commission will ever be adequately financed. That is why I think we should have this mechanism of public challenge. I may say that I don't anticipate that that would place any great burden on the Commission, because between I think 1951 when Mr. Pearson lost his case against the Hearst station in Baltimore and perhaps 4 or 5 years ago there wasn't such a case filed and there are only a handful of these

cases now.

The costs of these cases are so enormous that these cases are only going to be filed against important profitable stations which are vulnerable because of bad service or misconduct of some other kind.

The Commission has the capacity, without hearings, to dismiss out of hand cases which aren't adequately supported with a substantial application. And not many groups are going to be found who can put together a satisfactory application and put up the kind of war fund to run what at best is a very speculative gambling kind of suit with very uncertain prospects.

So, the only stations endangered here are the very rich and vulnerable stations. When the Communications Act was first enacted licenses were granted for terms of only 6 months. However, continual pressure from the industry has extended the normal term by stages. to 3 years. In the early days licenses were not always renewed. Some 164 renewals were denied shortly after the Radio Act of 1927 became effective. However, in recent years the Commission has developed the practice of renewing licenses almost automatically.

This procedure of granting monopolies while retaining no effective control over rates or service amounts to the give away of a precious national resource.

S. 2004 would destroy the only effective procedure by which the Government can satisfy its obligation to see that the public channels are used in the public interest. The Commission cannot perform this task by itself. It has at most four employees available to investigate programing deficiencies, and I am told they work in pairs.

A staff of this kind cannot monitor 7,200 broadcast stations. Furthermore, the Commission has always been reluctant to regulate programing and it renews without inquiry or investigation thousands of licenses for stations whose applications disclose that they carry little or no news, educational or other public service programing.

Until recently the Commission would not permit ordinary members of the public to file petitions to deny license renewal. The Commission entertained such applications only after a court mandate in 1966. I conducted the first such hearings in Jackson, Miss., in 1967. I would hesitate to characterize the manner in which this proceeding was handled by the Commission. Chief Justice Burger put it this way:

The Examiner and the Commission exhibited at best a reluctant tolerance of this court's mandate and at worst a profound hostility to the participation of the Public Interest Intervenors and their efforts.

The record now before us leaves us with a profound concern over the entire handling of this case following the remand to the Commission. The impatience with the Public Intervenors, the hostility toward their efforts to satisfy a surprisingly strict standard of proof, plain errors in rulings and findings lead us, albeit reluctantly, to the conclusion that it will serve no useful purpose to ask the Commission to reconsider the Examiner's actions and its own Decision and Order under a correct allocation of the burden of proof. The administrative conduct reflected in this record is beyond repair.

Justice Burger went on to direct the Commission to revoke the license, and as far as I know, that's the first time that has ever been done, either to the FCC or any other agency. The Commission's zeal in protecting station WLBT was not an isolated instance. To the best of my knowledge, the Commission has not denied the renewal of a license for bad program performance for decades.

The Commission is no more sympathetic to so-called jump applications. When a prospective applicant for the license of WPIX-TV in New York asked for a few days delay in the renewal so that it could complete its own counter application, the Commission refused to grant any additional time and granted WPIX an immediate renewal. The Commission has since reconsidered this action.

For many years the Commission has announced and reannounced the so-called fairness doctrine, which theoretically requires a station to present the diverse viewpoints on controversial issues of public importance in its service area.

This doctrine is very important to the maintenance of the American tradition of resolving social and political issues by full and free discussion. It becomes more important as broadcasting, particularly television, tends to supplant other media for the communication of social, political, and esthetic ideas.

In 1967, your staff wrote the Commission asking what sanctions it has imposed to enforce the fairness doctrine. The Commission replied that in its entire history it had never revoked a license, had never denied a license renewal, had never issued a cease-and-desist order, and

had never levied a forfeiture. The only sanction it ever imposed was the short-term probationary renewal granted station WLBT which was set aside as inadequate by the court of appeals.

I regret to say, and I say this with deference, that our committee believes that Congress, not the Commission, is primarily responsible for the lack of effective regulation. Its budgetary allocations prevent the Commission from any effective review of renewal applications. Whenever the Commission has seemed about to assert the public interest in the broadcasting channels, legislation has been proposed and sometimes enacted to curtail the Commission's powers. That is precisely what is happening now.

It appears that a racist station in Jackson, Miss., controlled by an immensely wealthy and powerful Texas family, may soon lose its license to an interracial group, including a number of distinguished local citizens. A station in New York City controlled by the Nation's largest newspaper chain has been challenged by an interracial group of local citizens. A station in Boston owned by RKO General, one of the largest communications conglomerates, has been challenged by a group of black citizens.

Before the Commission and the courts have even had an opportunity to consider the merits of these challenges, a bill is proposed to protect the owners. I do not claim that Congress is subservient to the broadcast industry, but I do believe that 7,200 station staffs and numerous affiliated newspapers, located in every congressional district, have the capacity to organize overwhelming support for an unsound bill. There is no comparable group to argue for the public interest.

To the best of my knowledge, no public petition to deny has yet succeeded in defeating a license renewal, although several have filed and are under consideration. Such petitions are not an adequate means of protecting the public interest. The New York Times estimated the cost of such a proceeding at $250,000. Such a petitioner must face the prospect of a vigorous contest with teams of lawyers hired by the station, using every discovery procedure and dilatory device, exhausting every appeal and extending the contest for many years.

Mr. Albert Kihn, who opposed the renewal of license of KRON in San Francisco, recently told another Senate subcommittee how he has been followed by teams of detectives, probing into his personal business.

Very few people have either the time, the money, or the courage to fight this kind of contest in order to benefit the public generally. On the other hand, contestants can readily be found when they may succeed in getting a license worth tens of millions of dollars.

The National Citizens Committee thinks a very heavy burden rests on the proponents of this legislation to demonstrate to you the evils that comparative hearings would create and to give you actual examples. The act has been in effect for 35 years. To the best of our knowledge, no station which held a full 3-year license has ever lost a renewal as a result of a competitive application.

We have seen some misleading letters to Congressmen, which suggest that under the present law all a new applicant has to do to get a license away from an existing licensee is to file a license application containing extravagant promises of improved service. To the best of