Mr. BADER. I think that is correct, sir. I think what we are all escaping here is the third party in this whole process. Not the incumbent and not the would-be applicant, but the public.

And the Commission is supposed to find out, is this station serving the public? And once that determination is made, if he is, he should be allowed to continue. If not, he should then be put into a contest with someone else for the thing.

Senator HART. I guess our point of difference is in the definition of how you test whether it is serving the public. Is it serving the public by being on the air all of the time, or is it serving the public but not as well as somebody else could.

That, I guess, is it. I agree with you that our concern shouldn't be the licensee primarily, nor the new applicant. It should be how we shall administer through this communication agency, the renewal problems, so as best to serve the public, so as to provide them excellence in broadcasting and television.

I am not unsympathetic with the fact that you have a lot of money, capital investment, riding on it. I understand that. It may well be that at the conclusion of the hearings I will agree with you.

But on balance, the bill as proposed makes better sense in terms of likelihood of advancing the public interest. But I will continue to try and test the soundness of the argument he has against the bill. Senator Moss. Isn't there another factor here that bears on the excellence of the service in that there is competition between stations? Is that not so? Doesn't the FCC grant licensee ordinarily, to other channels on television or other wavelengths on radio so that a station that was mediocre would suffer in the competition by losing its viewers or hearers? Is that right?

Mr. FOGARTY. I think you are right, Senator; yes. I would agree with you.

Senator Moss. So there is some sort of a demand for excellence that remains all of the time through that type of competition.

Mr. FOGARTY. A station that renders a unique service in a community such as, for instance, agriculture service in an agricultural area, this is a great plus, as against the station that does not.

Senator Moss. Thank you.

Senator PASTORE. Of course, we have to admit that there is a tremendous amount of drama and appeal in the argument that comparative competition would make a licensee, I suppose, stand on his toes a little bit more.

As an isolated instance, an argument. But it is a very complex thing, you have many things to consider here. You do have 7,000 licensees in this country, and you do have these investments that you speak about. Of course, that is not the thing that is going to compel this committee, I will tell you that very frankly, Mr. Fogarty. Because after all, we talk here about a citizen applying for a license, television license.

Usually it is a group of influential people, bankers or big businessmen, who make a combine and come in for one reason or another. We seem to talk about the little guy, but when it comes to television, it is big business, it's an affluent people, it's a lucrative business. It requires a tremendous amount of investment, and I think when you strip it of all of its drama and come down to the basic proposition here, unless there is some sense of stability, how far will a man go in investing his

money to modernize his equipment, to keep up with progress, hire the best personnel and the best performers.

And how you deal with these union-labor contracts. And how do you deal with the question of financing if you knew that you were going to be demised in, say, 3 years by what you call strike applications-all of these things have to be considered by the committee.

I want to emphasize the fact that there is nothing in this bill that denies to an aggrieved citizen who feels there has been a deficiency in performance to file a complaint. The minute he files that complaint there is to be a hearing as to whether or not that particular licensee has lived up to his responsibility.

Don't you understand it that way?

Mr. FOGARTY. I do, sir.

Senator PASTORE. We are not trying to obviate that at all. I suppose that during the progress of this hearing we will have many, many developments that will be convincing one way or the other. I want to say to you, Mr. Fogarty, that you made a fine case from where you sit, and you have gone out of your way to give this legislation the connotation of the Pastore bill. I did not introduce it, but there have been quite a number of sponsors-and I repeat again, my only interest here is the public interest.

I think that is the interest of this committee.

You have made a fine presentation, you and your attorney, and let's wait and see how it develops.

I want to thank you very much for coming.

Mr. FOGARTY. Thank you, Mr. Chairman, and gentlemen of the committee.

Senator PASTORE. Now we have Mr. Morton H. Wilner, of the Federal Communications Bar Association of Washington.

STATEMENT OF MORTON H. WILNER, PRESIDENT, FEDERAL COMMUNICATIONS BAR ASSOCIATION, WASHINGTON, D.C.

Mr. WILNER. Mr. Chairman, my name is Morton H. Wilner. I am currently president of the Federal Communications Bar Association, an organization established in 1936 of lawyers who are specially interested in practice before the Federal Communications Commission.

By resolution, the executive committee, the governing board of the association, has authorized me to appear before your committee to support and urge adoption of S. 2004. We appreciate the opportunity you have given us today to express our opinion which is based on experience in our specialized field of practice.

The resolution of the executive committee was adopted after the association had polled its membership to ascertain views. The questions submitted and the vote of the membership were as follows:

Should the association appear before the Senate Committee on Commerce and present its views on S. 2004?

Yes, 153. No, 54.

Should the association urge adoption of S. 2004?

Yes, 130. No, 77.

It is not my purpose to discuss the merits of the WHDH, Inc. decision. This case is still in litigation. I can and will refer to WHDH because of the results which have flowed from it-including this proposed salutary legislation. Regardless of the final outcome of WHDH

or however the case may now be categorized by the Commission or its staff, the procedural result is that every broadcaster suddenly and unexpectedly finds himself in a situation in which his license may be "up for grabs" every 3 years.

It is seen that about one-third of our members who voted opposed the adoption of S. 2004. It can be said that from the representations made by some of these members that their opposition does not arise from any belief that all is well in the Commission's handling of renewal applications, nor does it necessarily represent an endorsement of the Commission's handling of the WHDH matter. While no one can state with certainty all of the views which are held by a minority of the members of the association, I believe that their reasoning is based on the belief that the Commission's decision in WHDH was too harsh in its evaluation of the performance of an existing licensee where it gave no weight whatsoever to what it considered an average performance. And I think that the minority believes that a reevaluation of the Commission's policy and the adoption of a policy such as was followed before WHDH, which does not disregard average past performance, is a more equitable and appropriate response than what it considers the drastic remedy embodied in S. 2004.

I believe others in the minority were bothered by some of the problems enunciated by Senator Hart.

It is the view of the majority, however, that the dangers flowing from the WHDH decision are clear and present and urgently require the remedial legislation proposed by S. 2004. Without this proposed legislation there remains on explicit invitation to those so inclined to initiate a wholly unequal contest in which untested "blue sky" promises of future performance will be matched against actual performance. In such a contest the licensee who operates in the context of economic realities is dealing in a card game which is stacked in favor of untested promises. It is the fact that in the relatively brief period that has elapsed since the release of WHDH decision, this "invitation" has been accepted in three major markets-New York City, Boston, and Los Angeles.

I will not burden the committee with the repetition of the Commission which Mr. Fogarty so well spoke of. But I would like to call the committee's attention to the fact that the development of the embryonic UHF system may be delayed.

The Commission for years has attempted to encourage the development of a stable and competitive UHF television broadcast service. What then will be said to the UHF pioneer some years down the road when, having suffered through the difficult developmental phase, his facility becomes sufficiently lucrative so as to attract the interest of "tailormade blue sky" proposals? Such a prospect is not at all remote. That is precisely what Mr. Fogarty was trying to say about the VHF pioneers.

In the WHDH case, the dissenting opinion of Commissioner Robert E. Lee-and I do call to the committee's attention, I am sure I don't have to, that the decision in this case was a 3-to-1 decision, even though we do have a seven-man Commission--but Commissioner Lee pointed out the comparison of renewal and new applicants by identical

standards:

would permit a new applicant to submit a "blue sky" proposal tailor made to secure every comparative advantage while the existing licensee must reap the demerits of hand-to-hand combat in the business world, and the community it serves, in which it is virtually impossible to operate without error or complaint, if for no other reason than there are insufficient hours in a broadcast day with which to satisfy all the desires of the public.

The result may be to stifle the desire and to further burden those who would otherwise be willing to pioneer the development of facilities which today may be regarded as risky or marginal ventures.

Mr. Fogarty also covered the element of time and cost and I will not burden you with that.

Of paramount importance is the fact that the underlying premises of the WHDH principle are completely fallacious in a number of respects. For example, it is assumed-and I think Senator Hart did assume it—that a comparative evaluation of the qualifications of the existing licensee, together with all other interested persons, will result in the selection of the best qualified licensee and that the public will be the beneficiary of the resulting improved operation.

Rather than for me to characterize the inadequacies of this procedure I defer to Prof. William K. Jones, of the Columbia University School of Law, who made an exhaustive study of the "licensing of major broadcast facilities by the Federal Communications Commission." This study was prepared in connection with the Administrative Conference of the U.S. Committee on Licenses and Authorizations. In his overall summary of the comparative proceedings conducted by the FCC, he stated:

In any event, it seems generally agreed that the large number of comparative criteria, the complexities surrounding their application, the shifting emphases accorded the underlying policy objectives, all contribute to a degree of uncertainty and unpredictability that is probably unsurpassed in any other decisional context.

In his critique of the comparative hearing, Professor Jones stated: For inefficient and highly questionable use of the adjudicatory process, it is difficult to find a rival to the comparative hearing in a radio or television case. The conclusions of Professor Jones are shared by other informed and authoritative students of these procedures. The Commission itself and its hearing examiners have also indicated their serious concern with the efficacy of the comparative hearing procedures; and the same concern has been expressed by the courts. Thus, for example, in the Rochester case (Star Television, Inc. v. FCC, No. 21541 D.C. Cir. Jan. 30, 1969), Judge Leventhal of the U.S. Court of Appeals for the District of Columbia pointedly suggested that the present method of choosing a "winning" applicant in a multiparty, comparative hearing is wholly unsuited to the task. In dissenting from the majority's affirmance of the Commission's ultimate choice in a 7-year, eight-party proceeding for a new television station in Rochester, N.Y., Judge Leventhal stated:

The possibility that an agency may come to the point of resting on intuition is all the greater when it is recalled that there are no doctrines of burden of proof such as are available for decision of court cases when the proof stands in equipoise.

Senator PASTORE. May I interrupt you at that point and I want to speak to you as a lawyer.