In March of this year the FCC submitted to your subcommittee data on daily newspaper ownership of commercial broadcasting stations. This showed that daily newspapers wholly owned or held a controlling interest in the licenses of 640 commercial broadcasting stations.

Of about 6,800 stations, about 9 percent were owned and controlled by daily newspapers, mostly ANPA members. S. 2004 is a matter of general interest to the ANPA membership whether or not they own broadcasting stations.

Publishers who do not own broadcasting stations and who have no present intention to acquire broadcasting stations participated actively in the preparation of this statement. The bill is of immediate and direct concern to all publishers who now own or contemplate acquiring an interest in broadcasting stations.

We are here to strongly support S. 2004. ANPA has always advocated the policy that newspapers and persons associated with newspapers are entitled to equal consideration with other citizens in the granting and renewal of broadcast licenses.

Many newspaper publishers went into the broadcasting field when others were unwilling to risk venture capital in what were then losing businesses.

S. 2004 meets the test of legislation which would treat all citizens alike in an orderly renewal process. That is all newspapers ask and that is why we strongly endorse this bill. Even if no newspapers owned broadcasting stations, it is readily apparent that our members would be supporting this bill.

We believe S. 2004 is the minimum action necessary at this time to rectify the new policy of the FCC on renewal applications announced in the WHDH-TV case, where for this first time competing applications were evaluated as if all applicants, including the existing station, were serving a new station assignment.

We think, Mr. Chairman, it is important to notice not only what S. 2004 would do, but what it would not do. You heard testimony yesterday which I won't repeat about what it would do. But let me say a few words about what S. 2004 would not do.

It would not in any way limit the Commission's authority or discretion in ordering a hearing on any application for renewal of license. Nothing in this bill would give any licensee an appropriate right in the use of any frequency assigned or preclude any party from complaining to the Commission formally or informally, privately or publicly.

Nothing in this bill would preclude any person from petitioning the Commission to deny the renewal of the license of any station, nor limit the Commission in the exercise of any of its various regulatory powers over the operation of broadcasting stations and broadcasting licensees. The Commission could at any time require licensees to file a general report or special report and to respond to requests for information. The Commission at any time could investigate any station or stations and conduct inquiries. Nothing in this bill would preclude the Commission from issuing a cease and desist order, from instituting a proceeding for the revocation of license, from granting short term or probationary renewal or from assessing a fine.

The bill would simply relieve the Commission from the necessity of ordering a renewal hearing which it otherwise would not order, merely because someone attempts to jump on the frequency assignment of an existing station.

The serious problem of far-reaching consequences arises as a result of the Commission's new policy pronouncement in the WHDH-TV case where the FCC evaluated the competing applications as if all applicants, including the existing station, were seeking a new station assignment.

This new policy which we have given a rather jawbreaker name to in our statement-misweighted pseudo-comparative hearing policy does represent a sharp break from the Commission's longstanding practice of preferring a proven record of performance to mere promises by giving full credit to the renewal applicant for its past programing.

In this connection, I wish to make clear that we are citing the FCC decision in the WHDH-TV case only as a means of identifying the problem to which S. 2004 is directed.

This new policy of a misweighted pseudo-comparative hearing has been considered by many as an indication that the Commission is now prepared to encourage the submission of applications by persons seeking the assignment of the licenses of existing stations-a practice which, for descriptive purposes, I will call "frequency jumping."

Since the release of the decision in the WHDH-TV case, competing applications have been filed for television stations in Boston, New York, Los Angeles, and Jackson.

The present situation is reminiscent of what happened in the mid1920's when we experienced a breakdown in radio communications which led, in turn, to the Radio Act of 1927. The difference is that the modern frequency jumper is exploiting a procedural right to set in motion a long and expensive renewal hearing, whereas in the mid1920's he merely registered on someone else's frequency and went into operation.

An applicant for renewal of license is not subject to the same considerations and procedures applicable to an applicant for a new station. The FCC's misweighted pseudo-comparative hearing policy as applied to a frequency jumping situation is in sharp contrast to the procedure it follows in the case of complaints against an existing station at renewal time.

In the latter situation the Commission is able to exercise discretion (subject, of course, to judicial supervision on appeal) on the basic question of whether a time consuming and expensive hearing must be held.

For instance, just recently, the Commission rejected a complaint against an FM station owned by the Providence Journal. It held that the complaint, which was based in part on the station's newspaper ownership, did not justify holding a hearing on the station's renewal application.

If the complainant had chosen instead to file a competing application for the frequency licensed to the Journal, the FCC would have considered itself bound to hold a hearing which, but for the rival

application, it would not have held. In such a hearing, the station's newspaper ownership might be the key factor in a decision not to renew its license.

The current FCC practice of consolidating the applicant for renewal of license and the competing applicant for the station into a hybrid or pseudo-comparative proceeding is bound to be unfair and prejudicial to either the existing station or the competing applicant. If testimony on the existing station's performance and program service is admitted into evidence, the existing licensee's performance would then be compared with the promises of the new applicant, an unrealistic comparison.

On the other hand, if the hearing were limited to the prospective proposals and promises of both applicants, the record would not reflect the past accomplishments or deficiencies of the existing station. Such an approach would be equally unrealistic.

The FCC's new renewal policy is inconsistent with its prior practice and the intent of Congress. Although the renewal provision of the Communications Act of 1934 provided that an "application for the renewal of a license shall be limited to and governed by the same considerations and practice which affect the granting of original applications," there was recognition by the Commission and the courts of the equities of the existing station in the expectation of a renewal of license.

They also recognized that the Commission could not modify the assignment of an existing station without notice and opportunity for hearing, and if a competing application were filed, greater weight would be given to the actual performance of the existing licensee than to the promises of the new station applicant.

The equitable right of renewal and the difference in the standing of an applicant for renewal of license from that of an applicant for the initial license of a new station was summarized as follows by Senator Clarence C. Dill, an acknowledged authority on the Communications Act of 1934, in his text on "Radio Law (1938)":

Nevertheless, the provision of the statute, directing the Commission not to refuse a renewal of a license without giving the applicant a hearing, has enabled courts to apply the doctrine of equity in behalf of the applicant for renewal of license.

The application of that doctrine in this manner results in the application of the theory that priority in time of use gives priority in right of use.

The value of this right of renewal is difficult to define. Congress negatived it only in that part of the law which provides the applicant for renewal has no right as against the regulatory power of the government.

The result is that the applicant for renewal of his license is in a far more favorable position than a new applicant for the same facilities. As a result of the decisions of the courts that has become the recognized policy of the Commission.

The courts declare this right of renewal is a real right. They define it as a right of succession and a right the Commission cannot disregard.

Senator Dill's statement that an applicant for a renewal of license is in a different position than an applicant or competing applicants for a new station is a further indication of the understanding of Congress at the time that the Radio Act of 1927 was reenacted into the Communications Act of 1934.

In any event, the fact that the Commission's long-standing practice on license renewals conformed with Senator Dill's statement is reflected in the WBAL decision and the testimony of the FCC before the Congress preceding the enactment of the Communications Act Amendments of 1952.

In 1952, Congress revised section 307 (d) of the Communications Act which governs license renewals, to delete the following language: *** but action of the Commission with reference to the granting of such application for the renewal of a license shall be limited to and governed by the same considerations and practice which affects the granting of original applications.

This amendment reflected Congress's intent that an applicant for a renewal of license of an existing station should not be treated as if he were an applicant for a new station.

The Chairman of the Commission at that time, Wayne Coy, opposed this revision of section 307 (d) as unnecessary. He described as completely unfounded the fear, which led to the amendment, that a competing application would be preferred to an existing station on the basis of untested promises, as contrasted with the actual service of an existing station.

He gave an unequivocal assurance that the existing station will naturally and quite properly start with a great advantage and that a competitor requesting its facilities will not be able to prevail, and should not prevail, unless it can show that it is substantially superior to the existing station.

As plainly evidenced by the WHDH-TV decision, the Commission has recently paid inadequate heed to the guidance Congress provided it in 1952. Failure to enact S. 2004 would probably be considered by the FCC as evidence of congressional acquiescence in the frequency jumping practice, thereby expanding the recently opened Pandora's box of misweighted pseudo-comparative hearing cases.

This new policy has merited strong criticism on the ground that it threatens the stability of existing investment, destroys the legitimate expectation of broadcasting stations that their license will be renewed if they operate in the public interest, and puts a premium on gamesmanship, sandbagging, and "blue sky" promises which undermine the public's confidence in the way licenses are awarded.

Congress has conferred upon the FCC sole authority and discretion to initiate or not to initiate a hearing on an application to renew the license of an existing station. There is nothing in the statute nor any public interest reason to give to any citizen the right to put the license renewal of any station into a hearing, which is the misguided result of the Commission's newly stated pseudo-comparative hearing policy. The impact of the current FCC policy on renewals is disproportionately prejudicial to newspaper-owned stations. I am informed that there are now pending before the Commission at least seven cases where the licenses of existing television stations are newspaper owned: WHDH-TV in Boston and WPIX in New York.

This exposure of newspaper-owned stations to frequency jumping underlies the deep concern of newspaper publishers for corrective action at an early date. We are apprehensive that the present frequency jumping situation may be just a harbinger of the future.

The Commission's guidelines on the so-called factor of diversification of control of the media of mass communications have been applied at times in comparative proceedings by granting a decisional preference to the nonnewspaper applicant where the choice is between two or more competing applicants otherwise legally qualified.

Thus, the issues framed by the FCC are unfairly loaded against the newspaper applicant. The policy enunciated by the Commission is now promoting the filing of jump applications against newspaperowned stations by in effect saying that "your chances of getting the assignment are just as good as those of the existing licensee."

Such a policy is almost certain to generate the filing of competing applications for newspaper-owned stations and thereby burden the Commission's staff and resources with a large number of long and expensive hearings.

The holding of pseudo-comparative hearings would be an unwarranted imposition on the Commission as well as existing licensees and might be used as a new device for redistributing frequency assignments. In brief, we fear that the Commission's adoption of a new policy on license renewal may have created hearing procedures beyond its ability to control, not to mention the cost involved.

The antinewspaper bias reflected in recent FCC decisions illustrates the extent to which the Commission has strayed from the clear expression of congressional policy. In 1952, the House adopted an amendment to the Communications Act which would have expressly precluded discrimination against newspapers in broadcasting.

But in conference, the Senate and the House conferees unanimously agreed that such an amendment was unnecessary. The conference committee instead adopted this statement that makes clear that the FCC has no discretion to discriminate against newspapers:

It is the view of the conference committee that under the present law the Commission is not authorized to make or promulgate any rule or regulation the effect of which would be to discriminate against any person because such person has an interest in, or asociation with, a newspaper or other medium for gathering and disseminating information. Also the Commission could not arbitrarily deny any application solely because of any such interest or association.

It would be difficult to conceive of a more explicit statement of the Congress. Nevertheless, this clear statement of congressional policy has from time to time been disregarded by the Commission, and from time to time, individual commissioners have advocated or voted contrary to the above-quoted statement of the Congress.

To a great extent, enactment of S. 2004 would rectify Commission or commissioner actions in disregard of the congressional policy in the 1952 conference report.

Newspaper-owned stations serve the public interest. From radio's very beginnings and throughout the years, newspapers have made significant contributions to the growth of the broadcasting industry. The American public has benefited greatly from the fact that many newspapers invested their time, skills, and money, at great risk, in the pioneering of new broadcast services.

We are confident that the FCC's license files will reveal that virtually all of the newspapers which were pioneers in AM, FM, and TV broadcasting continue to operate the stations they originally applied for.