to prepare constantly for public meetings; and I think it is illusory to suppose that it will reveal the actual process of decision.

Professor Walter Gellhorn also observed:

28

*** as I think back upon my own experience in and out of government, many entirely honorable and useful solutions to disagreement have been reached through the confidential consideration of a form of words which would be facesaving. The process of negotiation and compromise, with which you as a legislator must be far more familiar than I, can hardly be conducted succesfully in front of a television camera.

Finally, it should be noted that most state legislatures now have open meeting requirements." A recent Common Cause survey identified 17 states which have taken significant steps in this direction over the last 18 months." The survey found that, "State legislators have repeatedly noted that open committee sessions are generally more orderly, well attended, responsive, and characterized by a higher level of debate." "1

It would appear from the foregoing that there is a marked trend toward open proceedings dealing with legislative and quasi-legislative matters. While the open proceeding may have some initial drawbacks such as grandstanding, these would diminish as gradually the open nature was accepted. And there would be several benefits. The open proceeding would facilitate knowledge and criticism of what the agency has done, and would improve the quality of its work. The agency members would in all likelihood be better prepared for such meetings. The process of legitimate negotiation and compromise would still go forward. Above all, it would lead to greater public confidence concerning agency activities: It is a sound general principle that the public's business should be done in plain view of the public.

Petitioner therefore urges that the Commission follow the above noted trend and experiment in this area by opening its special sessions dealing with important informal rule making proceedings." For example, both the House and Senate Committees hold open sessions on the broadcast renewal license bill. Why should not the Commission hold open meetings when dealing with similar renewal matters, such as Docket Nos. 19153, 19154, and 18110? The considerations militating for open sessions in the Congress appear equally applicable to the Commission when handling its quasi-legislative duties.

There is a further consideration militating for open Commission proceedings on informal rule making matters-namely, the pervasive “leaks" that normally accompany Commission meetings on such matters. As the Commission knows, it is customary for the trade press to report the essence of the meeting, including instructions for preparation of the report. To give two recent examples, the Commission's non-public meetings on Docket No. 18110 (co-located cross-ownership of TV and newspaper) and Docket No. 19142 (children's TV programming) were reported in the trade press, with considerable detail as to the direction that the Commission was moving." This obviously is poor process: Why should only the industry representatives know of tentative Commission decisions during the period before trade press publication? And even after such publication, why should the public be dependent on the truncated version set out in the trade journals, which might be confusing to those not "in the know"? In the face of such a long established, persistent, and unsatisfactory pattern of "leaks", and the trend toward open "legislative sessions", Commission experimentation with public sessions seems particularly appropriate.

IV. Special Procedures to Avoid Undue Delay in Informal Rule Making Proceedings

There has been inordinate delay in resolving the informal rule making proceeding. Many of these proceedings involve complex issues requiring in-depth study and analysis. The comment phase can thus consume a considerable period of time; and the oral presentations, usually scheduled by the Commission as to important policy issues, requires additional time. But after the conclusion of

28 Id. at p. 71.

29 See Appendix H for a chart prepared by Common Cause reviewing state open meeting statistics.

30 See testimony of Mr. John W. Gardiner, before the Senate Subcommittee on Reorganization. May 22, 1974, p. 7.

31 Ibid.

32 The routine informal rule making matter would thus continue to be hand led on an in camera basis at the weekly agenda meeting. The formal rule making proceeding would also be resolved in camera and solely on the basis of the hearing record.

33 See Broadcasting Magazine, September 16, 1974, p. 22; October 7, 1974, pp. 15-16. Television Digest, September 16, 1974, p. 3; October 7, 1974, pp. 1-2.

the oral or written phase, years have passed with no Commission action of any kind. Indeed, the Commission often focusses on the proceeding only after being prodded by the Congress, the Courts, or some unusual filing. Petitioner urges that the Commission devise procedures so that it can avoid this unnecessary delay-without reliance on outside stimuli that may not always be forthcoming. There are a number of examples of proceedings plagued by unnecessary delay. Thus, the TV-radio-newspaper cross-ownership proceeding was begun on April 6, 1970.* The reply comments were filed on August 19, 1971. After that, nothing happened for two and a half years. Finally, the Department of Justice in early 1974 filed petitions to deny the renewals of several TV licenses, based on undue concentration because of co-located ownership of the TV station and newspaper.* After these filings, the Commission reactivated the proceeding-ordering immediate staff studies, supplemental written filings "*** both for up-dating and elaboration * * *", and oral presentations." The Courts and the Congress also entered the picture. The Court refused to call the delay illegal but did encourage expeditious resolution: "7

While four years might be characterized as an excessive period for a rulemaking, we realize that concentration of control is an extremely complex question. The Coalition does not allege bad faith or purposefully dilatory proceedings by the Commission. If we are to encourage the Commission to proceed by rulemaking for basic policy changes [case citation omitted], we must necessarily be patient. We are not, at this time, prepared to say that the Commission has acted improperly by not terminating the rulemaking proceeding and announcing its new rules before now. We, of course, encourage the Commission to act expeditiously in this rulemaking, and reserve the question of at what point a continuing failure to act could be the basis for a different conclusion.

In the Broadcast Renewal license bill (H.R. 12993), the House bill directed that the Commission resolve the 18110 proceeding within six months of enactment and the Senate version by December 31, 1974. The Commission can take little satisfaction from the above procedural history, and particularly the dormat nature of the proceeding from August 19, 1971 to March 7, 1974 a period of two and one-half years.

Another pending example involves the pay cable proceeding in Docket 19554. The Commission adopted the pay cable rules in its Memorandum Opinion and Order of July 1, 1970. Within the 30 day statutory period, petitions for reconsiderations were filed raising substantial issues. The Commission did nothing with respect to these petitions for two years. Then, in July 1972, it commenced a new proceeding (Docket No. 19554) to deal expeditionsly with the issues raised by the petitions; but it did not modify or suspend the rules during the pendency of this new proceeding." The Commission received final comments on Novem

34 Further Notice of Proposed Rule Making, Multiple Ownership of Standard, FM and TV Broadcast Stations, 22 FCC 2d 339 (1970).

35 See, e.g.. Petition of the Department of Justice to Deny Renewal Applications in the Matter of Pulitzer Publishing Co., FCC BRCT-30, filed January 2, 1974: Petition of the Department of Justice to Deny Renewal Application in the Matter of Cowles Communications, Inc., Des Moines, Iowa, FCC File No. BR-515, January 2, 1974.

The Department's petition stated (pp. 26-27, St. Louis Pet.):

On principle as well as fact, it would be wrong to postpone deciding the concentration issue posed by the Newhouse-Pulitzer applications in deference to administrative orderliness. Docket No. 18110. insofar as it proposes a rule covering newspaper-broadcast crossownership, has been underway over three and one half years; no substantive pleading has been filed in it for two and one half years; as the Commission noted in April of 1970 (Further Notice of Proposed Rule-making, supra, 6), it might have addressed newspaper ownership then; and as of the beginning of 1974 the public still has no rule. We think that a reading of Hale v. FCC, 425 F. 2d 556 (D.C. Cir. 1970) gives fair notice that the Court assumed that, if it left the question with the Commission, the Commission would deal with it promptly. Indeed. not long after Hale, the same court held that prolonged failure to decide is itself a form of decision making. Environmental Defense Fund v. Hardin, 428 F. 2d 1093 (D.C. Cir. 1970).

38 See FCC 74-222. par. 12.

37 Columbus Broadcasting Coalition v. FCC, Case No. 73-1074, C.A.D.C., decided June 28, 1974. S. Op. p. 8.

38 See H. Rept. No. 93-961, in Broadcast License Renewal Act, 93rd Cong., 2d Sess., pp. 3, 18-19 S. Rept. No. 93-1190, on H.R. 12993, 93rd Cong., 3d Sess., p. 14.

30 23 FCC 2d 825.

40 Notice of Proposed Rule Making and Memorandum Opinion and Order. 35 FCC 2d 893, 899. And in order granting extensions of time for filing comments and reply comments, the Commission said:

"In issuing the Notice in this proceeding we indicated our intention to complete it expeditiously. Expedition was felt to be especially desirable because the existing rules were to be retained during the course of the proceeding although they had been subject to serious criticism on both procedural and other grounds."

ber 29, 1972. Almost a year later, on October 16, 1973, the Commission decided to hold an oral proceeding in November 1973." Then in August 1974, the Commission issued a Further Notice, and called for new oral presentations in October of 1974, because of the change-over of Commissioners." The Commission also has before it a petition for immediate relief, arguing that in the face of the above history and the substantial First Amendment issues raised by the pay cable rules, the rules should be suspended until Commission resolution of Docket 19554." It is now over four years since the adoption of the rules-with no explanation for the two-year period of delay upon reconsideration: if a new proceeding or oral argument were deemed desirable, they clearly should have been instituted without such delay.

Another example in this area is the petition filed by the Stern Community Law Firm to make public the financial returns (Form 324) filed by broadcast licensees." The Commission considered this petition for issuance of a notice of proposed rule making on March 2, 1973. No definitive action was apparently taken at that time, and nothing more has been done since that time. Over three years have now passed.

A final example involves a rule making matter of lesser significance but nevertheless one that was to be expeditiously handled-the notice of inquiry and proposed rule making in Docket No. 19518. This notice concerned the issues raised by agreements between local groups and the licensee whereby the former dismisses its petition to deny and is to be reimbursed for amounts legitimately and prudently expended for further services rendered under a consulting agreement. The Commission had deferred action on the propriety of this reimbursement agreement pending the initiation and resolution of the rule making proceeding. See Letter to Combined Communications Corporation (CCC), 33 FCC 2d 625 (1972). In concurring in the deferral, Chairman Burch stated: "* ** But I do strongly believe that the parties are entitled to a definitive answer within a short period of time. I see no reason why a proceeding of this nature cannot be concluded within the six months period specified * * *" The notice in Docket No. 19518 was issued four months after the CCC decision, with final written comments due on July 24, 1972. Comments were received in October 1972. There has been no action to date in this Docket, and no indication as to when action might be forthcoming.

Examples could be multiplied, by examining the list of "Major Matter Before the Commission", submitted to the Congress." See, for example, the Children's TV programming Docket 19142 (notice issued in January, 1971; last written comments in October, 1971; panel proceedings a year later in October 1972, and oral argument in January, 1973); carriage of radio station signals by cable systems-Docket No. 19418 (notice issued February 2, 1972; last written comments received in May 1972); Interconnection of Communications EquipmentDockets No. 16942; 19528 (resolution of post-"Carterfone: issues, pending since 1968).

48

Whatever the reasons for the above delay, the Commission clearly should take remedial steps. Its job is to decide these important policy issues. The public interest suffers when there is uncertainty for so long a period. Further, delay undermines the proceeding by rendering the record stale, and requiring "updating"." Indeed, inordinate delay can adversely affect the oral proceeding since

41 FCC 73-1072.

42 FCC 74-878.

43 See Petition for Immediate Relief, filled by Motion Picture Association of America, July 24, 1974.

44 RM-1837, filed on July 21, 1971.

45 Broadcasting Magazine, March 5. 1973, p. 9.

40 FCC 72-433, adopted June 1, 1972.

47 See Overview of the FCC, Hearing before Senate Subcommittee on Communications, 93rd Cong., 1st Sess., 1973, pp. 116-161.

48 See also the recent Senate debate on H.R. 12993, where Senator Metcalf stated concerning the Commission's delay in resolving the Conglomerate Inquiry begun in February 1969 (Cong. Record, Oct. 8, 1974, S18512-13): "We are entitled to some information on this problem. Yet after 5 years, the FCC has yet to produce one single report or proposal for public comment. We have waited long enough. It is our duty to order the FCC to act and act expeditiously." Senator Pastore stated that "*** this is a matter that should be discussed at the oversight hearings next year." (Ibid.)

49 See, e.g., FCC 74-222, par. 12; FCC 74-263, in Docket No. 18891 (cable-newspaper cross-ownership), par. 3 (“* * we believe it appropriate, in view of the time and the changes that have taken place in the industry since this proceeding was commenced, to reopen the docket for the filing of supplemental or new comments by all interested persons.")

often several who have heard the argument no longer serve at the time of decision.

Petitioner suggests the following self-imposed procedure as to informal rule making procedings or petitions to commence such proceedings.50

That within six months after the last written comment is filed the Commission determine whether oral presentations are desirable and if so schedule such presentations.

That within one year of such oral presentations (or the last written filing if no oral presentation is held), the Commission resolve the matter or consider at a Commission meeting and state why the matter is not resolved (and if necessary, that it repeat the latter process at six months intervals).

That the Commission equitably assign all pending informal rule making petitions or proceedings among its members; make the assigned member responsible for procedurally sheparding the matter and preventing undue delay; and publicly announce the assignments by issuing notices at appropriate intervals. The above procedure would thus supplement the McFarland report 52 and the major matter report submitted to the Congress. It would make the Commission focus on each informal rule making matter and state why it was not resolved a year after the last procedural step had been taken. It would make individual Commissioners responsible and thus motivated to cut down the backlog. And it would facilitate yearly Congressional oversight of this important agency area.

CONCLUSION

53

For the foregoing reasons, petitioner urges the Commission to adopt rules or procedures along the suggested lines, so that "the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of Lusiness and to the ends of justice." "

Respectfully submitted,

WASHINGTON, D.C., October 18, 1974.

HENRY GELLER.

APPENDIX A

FEDERAL TRADE COMMISSION,
Washington, D.C., March 13, 1974.

COMMISSION ANNOUNCES INCREASED "OPENNESS"

Federal Trade Commission Chairman, Lewis A. Engman, announced today that the Commission has formally and unanimously adopted policies designed to make more information available to the public. The thrust of these policies was spelled out by Engman on February 19. Today the Commission has now formally instructed the staff to prepare changes in the Rules of Practice and has adopted certain directives to the staff. Under the new policies:

News releases will be issued at the outset announcing investigations that cover an entire industry or involve practices which pose substantial risks to public health or safety.

50 There are of course other steps that would expedite resolution of these proceedings. Thus, industry parties all too often wait until the end of the, say, 120-day filing period and then petition for a long extension in order to conduct a study. Further, the Commission can often focus the issues by specifying precisely the nature of the studies it desires on some matter, instead of simply leaving it to the parties to develop as they wish.

51 The Commission should include in this category its own publicly initiated rule making proposals. For example, on March 2, 1971, the FCC issued a Memorandum Opinion and Order, modifying its cross-ownership rule to allow ownership of AM and FM broadcast stations in the same market. (28 FCČ 2d 662, 671-2 (1971)). The FCC stated that instead it would institute a rule making "in the near future" to consider requiring "more nonduplicated programming" by commonly owned AM-FM stations in the same market. Ibid. Three years later in March of 1974, the Commission issued a Memorandum Opinion and Order raising again the question of amending the AM-FM non-duplication rules, and stating. "*** we shall in the near future issue a Notice of Proposed Rule Making Intended to explore various possibilities for amendments of the rule" FCC 74-292, nër. 10. Finally, in April 1974. the Commission issued the Notice. FCC 74-381. An assigned Commissioner, with the responsibility of publicly reporting on the status of his rule making matter, would clearly have not tolerated such a delay.

52 See Section 5(e), requiring a report to the Congress of adjudicatory cases delayed beyond a specified period.

53 See, e.g., n. *. p. 20, supra.

54 Section 4 (j), 47 U.S.C. 154 (J).

Disclosure will be made when investigations of individual firms are closed by placing on the public record the closing letter sent to the party under investigation.

An analysis of provisionally accepted consent orders will be made available upon request to give the public a better understanding of the order's terms, and the period for public comment on proposed settlements will be extended from 30 to 60 days.

A speeded-up method of handling requests for access under the Freedom of Information Act will be instituted.

Internal staff memoranda ordinarily will be disclosed to the public after a file has been closed for three years, and nearly all internal documents in closed files will be released after 10 years unless some specific reason makes disclosure contrary to the public interest.

Staff members of the Commission will be required to keep records of all outside contacts relating to pending investigations or cases, with these records becoming part of the public record when the case becomes public. In addition, each Commissioner has agreed to maintain a log of all outside contacts relating to pending investigations or cases.

Engman said that these new policies will be put into effect as soon as possible. Where necessary, revisions are being made in the Commission's Rules of Practice and Procedures.

Engman explained that, "the Commission believes these new steps strike a reasonable balance between conflicting interests-the American people's inherent right to know what their government is doing on the one hand, and legitimate rights of privacy, as well as the need for some degree of confidentiality if the Commission is to carry out effectively its law enforcement mission, on the other hand."

The requirement that staff members maintain records on outside contacts about pending law enforcement activities supplements the ex parte (one sided) prohibitions currently contained in the Commission's Rules. The Rules presently prohibit ex parte communications to Commissioners once a formal complaint has been issued. If such ex parte communications are received, they must be placed on the public record. Up until now, however, no requirements existed with respect to communications received by staff members, and no requirements addressed a situation where a formal complaint had not yet issued.

The directive to the staff on the recordings of contacts regarding cases or investigations by persons outside the Commission provides that such contacts need not be recorded when they involve "routine requests for information with respect to the status of a matter."

Such requests are defined as "inquiries regarding when public actions were taken or may be taken, identification of parties or staff personnel responsible for the matter, or availability of public information about the investigation or case."

The directive and form to be used by the staff are attached.

Administrative Bulletin

Subject: Contacts by Persons Outside the Commission Relating to Investigations or Cases

The purpose of this directive is to set forth procedures for making and keeping records of contacts made with Commission personnel by non-involved persons outside of the Commission concerning investigations or cases pending within the Commission. The requirements of this bulletin are in addition to the requirements of Section 4.7 of the Commission's Rules of Practice and Procedure as well as any requirements of the Administrative Procedure Act.

Each Commission employee shall record on a "Record of Outside Contact" form (see attached form) each oral communication (in person, by telephone, or otherwise) by a non-involved person indicating an interest in the matter.

The completed "Record of Outside Contact" form shall be placed in the file of the matter and shall thereafter be made part of the Commission's public records if and when a public record of the matter is established. If the communication concerns an adjudicative proceeding, the completed "Record of Outside Contact" form shall be transmitted to the Secretary who shall place it in the public record of the case, but separate from the record material upon which the Commission can rely in reaching its decision in the case.

For purposes of this directive, a "non-involved person" means one with whom contact would normally not be made in the routine handling of the investigation