Federal Communications Commission, Appellant-Cross-Appellee v. Taft B. Schreiber and McA Inc., Appellees-Cross-Appellants

329 F.2d 517 FEDERAL COMMUNICATIONS COMMISSION, Appellant-Cross-Appellee, v. Taft B. SCHREIBER and MCA, Inc., Appellees-Cross-Appellants. No. 17990. United States Court of Appeals Ninth Circuit. Feb. 17, 1964, Rehearing Denied May 4, 1964. Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Sherman Cohn, Attorney, Department of Justice, Max D. Paglin, General Counsel, John J. O'Malley, Jr., Upton K. Guthery, and Barbara B. O'Malley, Attorneys, Federal Communications Commission, Washington, D.C., and Francis C. Whelan, U.S. Atty., Los Angeles, Cal., for appellant-cross-appellee. Beilenson, Meyer, Rosenfeld & Susman, Allen E. Susman, and Jeffrey L. Nagin, Beverly Hills, Cal., for appellees-cross-appellants. Before JERTBERG and BROWNING, Circuit Judges, and FOLEY, Jr., District judge. FOLEY, Jr., District Judge. Appellant-Cross-Appellee will be referred to as the Commission and Appellees-Cross-Appellants jointly as Appellees and separately as MCA and Schreiber. On February 26, 1959, by authority of 47 U.S.C. 403, the Commission published in the Federal Register (FR 1605) its order that an investigatory proceeding be instituted. '* * * to determine the policies and practices pursued by…

Appellant-Cross-Appellee will be referred to as the Commission and Appellees-Cross-Appellants jointly as Appellees and separately as MCA and Schreiber.

On February 26, 1959, by authority of 47 U.S.C. § 403 , the Commission published in the Federal Register (FR 1605) its order that an investigatory proceeding be instituted

“ * * * to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for television exhibition, and the reasons and necessity in the public interest for said policies and practices * * *." 1

In the order, the hearing examiner designated to conduct the investigatory proceedings was authorized to receive evidence and make a record thereof, to administer oaths, subpoena witnesses, to compel their attendance, and compel the production of documentary evidence.

The order closed with this paragraph:

The record reflects that while public sessions were being held in Los Angeles, California, the examiner issued a subpoena duces tecum to Schreiber, MCA’s Vice President, commanding him to appear to testify and to produce documentary evidence described in the…

(dissenting in part).

I

Under federal regulation primary responsibility for program content is imposed upon individual television broadcast licensees. 1 The purpose of the present investigation is to determine whether control of program content has in fact passed into the hands of others, and, if so, what administrative action should be taken, or legislative action recommended, in response to the shift in power. 2 The authority of the Commission to conduct such an inquiry is not questioned. 3 The public interest in its thoroughness and effectiveness is obviously great.

*529 Mr. Schreiber is Vice President of MCA, Inc. The Commission has found, without challenge, that MCA “engages on a large scale, in all facets of television program production,” and that “failure fully to explore the policies, practices and activities of MCA, Inc. * * * would seriously impair, if not render nugatory,” the Commission’s inquiry.

Schreiber and MCA do not question the validity of the Commission’s subpoenas and orders requiring the testimony of Schreiber and the production of the records of MCA described in Annex B. 4 They contend only that the Commission erred in declining to receive the testimony…