LEXSEE 35 F

NATIONAL INDUSTRY ADVISORY COMMITTEE (NIAC)

EXTENDED FOR 2 YEARS

FEDERAL COMMUNICATIONS COMMISSION

35 F.C.C.2d 921

RELEASE-NUMBER: FCC 72-449

JUNE 14, 1972

JUDGES:

THE COMMISSION BY COMMISSIONERS BURCH (CHAIRMAN), BARTLEY, ROBERT E. LEE, H. REX LEE, AND WILEY, WITH COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT, AND COMMISSIONER REID ISSUING A REPLY STATEMENT, ISSUED THE FOLLOWING PUBLIC NOTICE:

OPINION:

The National Industry Advisory Committee (NIAC), organized under Executive Order 11007 to advise and assist the Commission in matters relating to emergency communications, has been extended for two years. The action by the 39 F.C.C. 2d 77.

Operating on the national level, under the Commission and the FCC's Defense Commissioner, NIAC has special working groups that make specific studies of emergency communications problems affecting all licensed and regulated communications services. Recommendations are submitted to the Commission for action.

The individual States and territories have State industry advisory committees that are directly concerned with the problems and requirements of the individual States and see to it that the necessary information reaches the local working level.

Action by the Commission May 24, 1972. Commissioners Burch (Chairman), Bartley, Robert E. Lee, H. Rex Lee and Wiley, with Commissioner Johnson concurring in part and dissenting in part and issuing a statement, and Commissioner Reid issuing a reply statement.

CONCURBY: REID; JOHNSON (IN PART)

CONCUR:

REPLY STATEMENT OF COMMISSIONER CHARLOTTE T. REID

Let me say at the very outset that it would not be necessary for me to issue a statement except for the fact that Commissioner Nicholas Johnson has seen fit to attack the Commission's action today of approving the continuation of what I believe to be a very important advisory committee, one which assists the Commission in its emergency communication planning responsibilities. NIAC's primary role is to make specific studies of emergency communications' problems affecting all licensed and regulated communications services and to make their recommendations known to the Federal Communications Commission so that the Commission may then make an informed decision. The members of this Committee participate in its activities on a completely voluntary basis without compensation. Without the benefit of the expertise of its members, the Commission would not have the capability of carrying out all of the requirements involved in the emergency communications area.

As the Defense Commissioner, I am deeply troubled by the context of Commissioner Johnson's dissent. Even more so when one looks at the history of this outstanding Advisory Committee and the record of its accomplishments since its inception and the invaluable service it has played in improving the nation's capacity to meet the needs for emergency communications.

In 1958, the Commission organized the National Industry Advisory Committee (NIAC), under the provisions of Executive Order 11007, and the Commission, because of the public interest served by its continued existence, has extended the life of the NIAC Committee every two years since that time. The last extension for NIAC was that granted by the Commission on May 20, 1970.

Thus during Commissioner Johnson's tenure at the Commission, there have been two previous extensions of the NIAC Committee, one in 1968, and the other in 1970. Commissioner Johnson did not oppose the extension on either occasion.

Let us examine the language of those proposals and see what it was that the Commission approved on each of those dates. The item contained two significant paragraphs. The first was paragraph 8, which stated: "As has been done in the past, IT IS RECOMMENDED, that the Commission waive the requirement of a verbatim transcript..." and the other was paragraph 9, which said: "Therefore, IT IS RECOMMENDED, that the Commission do as it has done in the past and waive the requirements of annual publication because it would be unduly costly and impractical."

Commissioner Johnson voted in favor of the adoption of the recommendations which were identical to those which we voted on today. The Commission, including Commissioner Johnson, met these same issues squarely -- face-to-face -- considered and resolved them by waiving these requirements.

In examining the past history of the Commission's votes on these identical issues, I found that the Commission has never required the publication of the list of members nor has it required a verbatim transcript of NIAC proceedings.

What was there then that could have so disturbed Commissioner Johnson in the present Commission document so as to cause him to write such a caustic dissent? Frankly, I cannot find any difference.

Under the recommendations made by my office, as Defense Commissioner, for the continued existence of NIAC, were the following paragraphs to which Commissioner Johnson objects.

The first is paragraph 8, which stated: "As has been done in the past, IT IS RECOMMENDED, that the Commission waive the requirement of a verbatim transcript..." and the other is paragraph 9, which said: "Therefore, IT IS RECOMMENDED, that the Commission do as it has done in the past and waive the requirements of annual publication because it would be unduly costly and impractical."

Let us look at the total numbers involved and I believe you will immediately understand why the publication of the members would be unduly costly and impractical. The NIAC structure is as follows: a chairman and two vice-chairmen, 525 members of National level subcommittees, 8,500 members of state level subcommittees and 30,000 members of operational area subcommittees. One does not have to be a mathematician or an economist to immediately see the tremendous cost involved in the publication of a list containing 39,028 names overall -- or even 528 names of those members of the National level subcommittees. This information is available to any person upon request to the Office of the Defense Commission. Because of the constant changing of the members of those committees, any printed list would not be current, even on the day after being printed.

I do not wish to question the motives of Commissioner Johnson in his latest dissenting statement, but I find it extremely difficult to understand the change in his position since the 1970 vote, except that this is a Presidential election year, whereas 1970 was not.

Such charges as those made by Commissioner Johnson here against the Commission's action in continuing the NIAC Committee are in my judgment not only unfounded, but seem to me to be based upon a complete misunderstanding as to what was being considered by the Commission. Today his target of opportunity was the continued existence of the NIAC Committee. What will it be tomorrow?

To borrow a line from Shakespeare:

"The (Commissioner) doth protest too much me thinks." (Hamlet, III, ii, (242))

DISSENTBY: JOHNSON (IN PART)

DISSENT:

OPINION OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART

The Commission today extends the existence of the National Industry Advisory Committee (NIAC), which is composed of boards that advise the FCC on matters of emergency preparedness, until June 30, 1974. Simultaneously the Commission waives the requirement that NIAC keep a verbatim record of all its proceedings and that NIAC's membership be published in the FCC Annual Report. I dissent from these latter two actions.

The role of industry in governmental decision making affecting the public is so well and repeatedly documented that I need not plow that ground once again. (See, for just one example, the "redrafting" of the FCC's cable television policy by big business interests. Cable Television Report and Order, F.C.C. 2d (1972); 24 P & F Radio Reg. 1501, 1558, 1593, 1595 (1972). See also my supplementary opinion, as yet unreported, released Feb. 28, 1972.)

There are numerous ways in which the presence of big business is felt in the halls of government -- most of them "legal," in the sense that business has also influenced the laws affecting itself. (ITT's alleged pledge of $400,000 to President Nixon's convention while ITT antitrust cases were pending before his Justice Department was recently found legal by a California Court. Brown v. ITT. F.Supp. (C.D. Cal., May 16, 1972 [72-623]).) One of these legal techniques is the "industry advisory committee."

Such committees enable businessmen to gather with each other and federal officials -- in what has been called "the U.S. Government, Inc." -- without violating the Administrative Procedure Act, the antitrust laws, or the ex parte rules. It is a very convenient device in creating and maintaining the sub-governments that set rates and import quotas, award monopoly profits (routes, broadcast stations), give away subsidies and government contracts.

It has always seemed somewhat revealing to me that the FCC has industry advisory committees, but few, if any, parents' advisory committees, consumer advisory committees, or citizens' advisory committees -- which EO 11007 also gives us the power to create.

I am fully prepared to agree with Commissioner Reid that NIAC has since its inception played an invaluable role in "improving the nation's capacity to meet the needs for emergency communications" -- notwithstanding the numerous false alarms. (See, e.g., New York Times, Feb. 20, 1971 at 1, Col. 2.) The broadcasters and FCC participants may very well be patriotic, dedicated, and engaged in high public service. Contrary to Commissioner Reid's intimation, I have no quarrel with NIAC's continued existence. Nor do I allege for a moment that there is anything necessarily wrong going on at the NIAC meetings.

But it was because of the potential risk that certain procedures -- minimal in the extreme -- were established by the President of the United States to govern the operation of such industry advisory committees.

By Executive Order 11007 President Kennedy established what amounts to a presumption in favor of verbatim reports for NIAC. The Commission's present action overrides that presumption without proper examination of the consequences of such a move. At a minimum, the Commission is obliged to inquire, as is mandated by E.O. 11007, whether such a transcript is indeed impracticable or interferes with NIAC's functions. Without such an inquiry I cannot join in the transcript waiver.

Waiver of the publication of the names of NIAC's committees and members in the Commission's annual report is a somewhat more serious matter, as it effectively submerges them from even the most superficial public awarencess. A purpose of an annual report would minimally seem to be to give interested persons a glimpse into at least the identity of those who make decisions or recommendations that affect their lives.

While it is true that NIAC's national membership fluctuates, and that any single list would not be a valid roll for all times and places, this can hardly be seen as a reason not to publish its membership. Such reasoning would prohibit the publication of the membership of anybody in an annual report, including the membership of the Commission itself.

The publication of the names of NIAC's committees and national membership, a list of 528 names, would not seem to be unduly costly or impractical. n1 It strains credulity to believe that naming the chairman, two vice-chairmen, and national NIAC members would be an unreasonable burden. n2

n1 "Unduly costly or impracticable" are the only standards E.O. 11007 provides for waiver of the publication of membership requirement. E.O. 11007 Sec. 10(a) provides for waiver of the requirement of publication of memberships only when the agency "determines that such annual publication would be unduly costly or impracticable, but shall make such information available upon request to the Congress, the President, or the Attorney General." In this instance, I believe the Commission has violated E.O. 11007 insofar as it has not made express findings under the "unduly costly or impracticable" standard. (Section 6(d) establishes a comparable standard for waiving the transcript publication requirement. The Commission has not made any finding under that section either.)

n2 Needless to say, I have never proposed the publication of a telephone-book-list of 39,028 names, as is implied by Commissioner Reid. I only wish that the Commission would make available to the public such information as is properly available to them in this situation. Giving such information in its easiest form, through the medium of the annual report, is not a burden on the Commission, and further seems to be demanded by public policy as expressed in Executive Order 11007.

Executive Order 11007 places the burden on the Commission voluntarily to make available through its annual report a list of NIAC's members. Today the Commission decides no longer to volunteer this information, but to require anyone who wants to know the members of NIAC to come to the Commission and ask. Part of the reason for this seems to be that there is a belief on the Commission that no one cares who the members of NIAC are. That may well be, but there is no evidence of that. And even if there were evidence of a substantial lack of interest in NIAC's membership, failure to disclose its membership without a greater showing than the Commission has made here would still seem to violate at least the spirit of public disclosure embodied in E.O. 11007.

Commissioner Reid notes that I did not oppose these two waivers when NIAC extensions were previously before the Commission. Whatever issues involving NIAC may have been voted on in the past, this is the first occasion -- to my knowledge and recollection -- that this Commission has been forced squarely to face, consider and resolve the transcript and membership publication issues. I believe it has erred, and I believe that my commission of office requires me to say so. n3

n3 I regret Commissioner Reid's reference to the "election year" change in my position from 1970 to 1972. If this comment was put forward seriously, I will simply note that 1970 was also an election year of some consequence, with Presidential and Vice Presidential participation, and would have presumably left me with "motives" equally as partisan and unrelated to the merits as she suggests move me now.

It is not the function of this or any other Commission to decide for other people what public information they are or are not interested in. I dissent from this action which in reality reverses what should be a free flow of information to the public.