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The savings provision in the preamble to the Act sets forth the policy of Congress regarding the establishment of additional systems:
It is not the policy of Congress by this chapter . . . to preclude the creation of additional communications satellite systems, if required to meet unique governmental needs or if otherwise required in the national interest. 47 U.S.C. § 701 (d) (1970).
In the operative provisions, section 201(a)(6) expressly recognizes that other systems were contemplated for it declares that the government may utilize other systems under conditions parallel to the savings provisions of the above-quoted section. Section 201(a) (6) states:
the President shall take all necessary steps to insure the availability and appropriate utilization of the communications satellite system for general governmental purposes except where a separate communications satellite system is required to meet unique governmental needs, or is otherwise required in the national interest. 47 U.S.C. § 721 (a) (6) (1970) (emphasis added).
Presumably, if the new system, as a factual matter, can be justified as in the national interest or required to meet unique governmental needs the 1962 Act expressly permits it.
Section 305 (a) grants to Comsat the authority to "(1) plan, initiate, construct, own, manage, and operate . . . a commercial communications satellite system. . . 47 U.S.C. § 735 (a) (1) (1970). As first introduced, this section referred to systems. (H.R. 11040) This was changed to the singular by the Senate. This deliberate action and the Act's consistent use of the term system in lieu of systems is, in our opinion, an indication that the Act only intended that Comsat be given control over the single system then contemplated. Since the Act did foresee the eventual creation of additional systems but did not vest their control solely in Comsat, the subsequent creation of new controlling entities cannot be said to have been precluded by the Act.
Although we have not had the time to read all of the extensive legislative history of this Act, we believe that the record sufficiently reinforces this conclusion. It is true that the legislative history is replete with statements to the effect that the Act creates a private monopoly. These statements, however, clearly reflect the de facto, not the de jure consequences of the Act. For example, in House hearings FCC Chairman Minnow stated the universal assumption concerning why a monopoly was being created:
[I]t is generally accepted that for the foreseeable future only one commercial space communications system will be technically and economically feasible. Hearings Before the House Committee on Interstate and Foreign Commerce on H.R. 10115, 87th Cong., 2d Sess., pt 2, at 400 (1962).
Although recognizing that at the time other systems were not technically or economically feasible, there is clear evidence of legislative intent that complementary or competing systems be legally permissible. Congressman Harris, the floor manager of the bill, stated the intent of section 102(d) (47 U.S.C. § 701(d), supra), as understood by members of the House Committee in Interstate and Foreign Commerce which reported the bill:
[I]t was agreed that it was not the intent of the Congress by this Act to preclude the creation of an additional communications sysem or systems . . . . 108 Cong. Rec. 7523 (May 2, 1962)1
More significant, perhaps, are the remarks of Senator Church concerning his successful amendment of section 201 (a) (6). As originally introduced this provision allowed government use of another satellite system only if a unique government interest so required. Section 102 (d) on the other hand stated in addition
1 The complete statement of Congressman Harris came on an amendment to section 102(d) which he described as follows:
Mr. HARRIS. Mr. Chairman, this is an amendment suggested by our distinguished Speaker of the House with whom I conferred on this legislation concerning two or three matters that we thought would strengthen it. I have not had an opportunity to discuss it with the committee, but paragraph (d) in the committee bill is a provision that was included at the outset and had to do with reserving the right to the Government to provide an additional system should it be determined in the public interest. But as the Clerk read a moment ago, it is approached in a negative way. In other words, as originally proposed, I assume at the council level in the administration, or somewhere along the line, I am not sure just where, this was a provision in various proposals and the committee did not disturb it. But it was agreed that it was not the intent of the Congress by this act to preclude the creation of an additional communication satellite system or systems, and so forth. I thought the suggestion made by our distinguished Speaker was very good, that we should take a positive rather than a negative approach.
The amendment, therefore, is that Congress reserve to itself the right to provide an additional communications satellite system if required to meet unique governmental needs or if otherwise required in the national interest.
to this reason, the Congressional intent to allow additional systems if the national interest so required. Sentaor Church's amendment was clearly intended to make the sections uniform. In explaining the need for his amendment, Senator Church made the following significant statement concerning the purposes and policies of these sections:
Mr. CHURCH. Mr. President, the purpose of this amendment is to make the operative language of the bil litself conform with one of its most important declared purposes. Under the declaration of policy and purpose of the bill, section 102(d) reads:
(d) It is not the intent of Congress by this Act to preclude the use of the communications satellite system for domestic communication services where consistent with the provisions of this Act nor to preclude the creation of additional communications satellite systems, if required to meet unique governmental needs or if otherwise required in the national interest.
The wisdom of the last clause "or if otherwise required in the national interest" is perfectly apparent. We cannot now foretell the corporate instrumentality established by this act will serve the needs of our people. If it should develop that the rates charged are too high, or the service too limited, so that the system is failing to extend to the American people the maximum benefits of the new technology, or if the Government's use of the system for Voice of America broadcasts to certain other parts of the world proves to be excessively expensive for our taxpayers, then certainly this enabling legislation should not preclude the establishment of alternative systems, whether under private or public management. And just as certainly is that gateway meant to be kept open, just in case we should ever have to use it, by the language to be found in the bill's declaration of policy and purpose to which I have referred. 108 Cong. Rec. at 16362 (August 13, 1962)
So far as we have been able to determine there were no dissents to this analysis. One argument that Comsat may be able to assert in its favor is a section 102(d) implication that only systems which are required to meet "unique governmental needs" or required in the "national interest" can be owned and operated by other organizations. Since we understand from your memorandum that the air traffic control system can be justified factually as in the national interest, this section should not be a bar to the new system in any event.
Even if the new system were not required in the national interest, however, several arguments can be made to the effect that section 102(d) was not intended to be exhaustive but merely illustrative of reasons why a new, nonComsat system is possible. For example, if the two savings provisions were intended to be exhaustive, Congress would be likely to use the word "solely" to clarify the scope of exceptions. In addition the legislative history which we have already cited, particularly Senator Church's statement, indicates that other independent systems are possible for the broadest of reasons.
A third argument in this regard is a rule of statutory construction holding that statutes be construed as furthering public policy rather than derogating from it. 2 J. Sutherland, Statutes and Statutory Construction § 5901 (1943). In this connection, section 102 (c) states that activities of Comsat "shall be consistent with the Federal antitrust laws." 47 U.S.C. § 701 (c) (1970). The legislative history also indicates that antitrust policies were not overriden by this Act. Since the Congress has repeatedly, in this statute and elsewhere, indicated a public policy against monopoly situations, we believe that Comsat has a heavy burden to prove that section 102(d) implies an intent to preclude the establishment of an independent air traffic control system.
II. INTELSAT AGREEMENTS
As we understand it, Comsat has been designated as the United States operating entity for the International Telecommunication Satellite Consortium, INTELSAT. Since 1964, this organization has been governed by the Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System, 15 U.S.T. 1705, T.I.A.S. No. 5646 (August 20, 1964).
In examining this and subsequent executive agreements, we have not discovered any express provision that would grant Comsat an exclusive monopoly over the proposed air traffic control system. Although we do not have the advantage of the extensive legislative history that was available regarding the 1962 Act, other extrinsic evidence reinforces the conclusion that Comsat was not intended to have a monopoly by the terms of the Interim Agreement.
The Interim Agreement was signed at the initiative of the United States, two years after the 1962 Act. It is clear that INTELSAT is the outgrowth of the Act's directive to the President to "insure that timely arrangements are made under which there can be foreign participation in the establishment and use of a communications satellite system." 47 U.S.C. § 721 (a) (5) (1970). The INTELSAT provisions mesh completely with those of the earlier Act. For example, the preamble states the desire to establish "a single global commercial communications satellite system." 1 U.S.T. at 1706. The use of the singular is, significantly, the same as in the 1962 Act.
In such circumstances, a rule of statutory construction requires statutes in pari materia be construed together. This permits the reasonable assumption that the intentions of both the Act and the Agreements are he same. Since we have concluded that the Act does not preclude additional systems, the Agreement should not preclude them either.
Another rule of statutory construction requires that the practical interpretation of persons working pursuant to the terms of a particular provision be given consideration. In this connection it is significant that to date INTELSAT has never provided navigation or public communication services to ships or aircraft.
As noted, the Interim Agreement went into effect in 1964. A permanent agreement to supersede that Agreement was approved by INTELSAT members on May 21, 1971, and has been signed by the United States. It will probably have the requisite number of signatures by early 1972. This permanent agreement, together with statements by the United States interpreting INTELSAT as not encompassing the air traffic control system can serve to indicate the intended construction of the executive agreements.
Article III (a) of the new Agreement states that the prime objective of the organization is in "international public telecommunications services." Other provisions of this Article permit INTELSTAT to include domestic public telecommunications and specialized communications only if they do not impair the abilty of INTELSAT to acheve its prime objective. Thus, the Agreement clearly indicates that no monopoly on telecommunications systems was intended, at least in these other areas.
Even if we assume that INTELSAT does have a monopoly for "international public telecommunications services," an assumption not warranted by express provisions of the Agreement, there arises a factual question of whether the air traffic control system constitutes such a service. Article 1(k) indicates that the proposed system is not such a service:
"Public telecommunications services" means fixed or mobile telecommunications services which can be provided by satellite and which are available for use by the public, such as telephony, telegraphy, telex, facsimile, data transmission, transmission of radio and television programs between approved earth stations having access to the INTELSAT space segment for further transmission to the public, and leased circuits for any of these purposes; but excluding those mobile services of a type not provided under the Interim Agreement and the Special Agreement prior to the opening for signature of this Agreement, which are provided through mobile stations operating directly to a satellite which is designed, in whole or in part, to aviation or maritime radio navigation." (Emphasis added).
The clear impact of this provision is two-fold: (1) the New Agreement expressly excludes an air traffic control system and (2) the Interim Agreement, as interpreted in this provision did not cover the proposed system.
In conclusion, our research indicates that substantial arguments can be made for the proposition that neither the 1962 Act nor the INTELSAT Agreements were intended to grant Comsat a completely monopoly over all future telecommunications satellite systems. We would caution that this dispute will likely arise at a later time when the Federal Communications Commission will be required to make a separate legal inquiry in connection with any licensing proceedings for the new system. By that time, Comsat and any other interested organization presumably will have developed complete legal arguments in support of a contary conclusion.
WILLIAM H. REHNQUIST,
2 See 2 J. Sutherland, Statutes and Statutory Construction §§ 5201-11 (1843).
OFFICE OF TELECOMMUNICATIONS POLICY STUDIES AND RESEARCH CONTRACTS AT FEB. 16, 1973
Year contract let
Sachs/Freeman Associates Inc...
FISCAL YEAR 1970
To identify the information and associated analytical techniques to solve
To define an initial Government spectrum measurement/monitoring pro-
To expand the data base and to continue development of the data proces-
To provide the technical foundation for coordinating spectrum utilization
Measure transmission loss occurrence for realistic configurations of an
National Academy of Sciences. To continue to provide guidance to the Director of Telecommunications Policy in formulating a methodology for determining the economic and social value of the electromagnetic spectrum in such a way that these values may be incorporated into the spectrum management process.
FISCAL YEAR 1971 Versar, Inc.
Quantum Science Corp.
FISCAL YEAR 1972
Ross Telecommunications Engi-
Stanford Research Institute.
Becker & Hayes..
Malarkey, Taylor & Associates___
National Economics Research
Stanford Research Institute.
System Application Inc..
Systems Application Inc......
To investigate the feasibility of developing EMC measures which could be
To assist in identifying possible national policy issues in the general area
Perform engineering analyses to determine radio frequency interference
Analysis of the file utilization, the data involved, and the hardware/soft-
To catalog, classify and process OTP's data bases on the estimate of 3,750
Investigated the feasibility of alternative pilot projects to demonstrate
To assist OTP in the determination of the costs of providing programing of
To study the optimal mix of international telecommunications facilities..
To perform analyses and studies in the area of land mobile radio com-
Peat, Marwick, Mitchell & Co. To study possible modifications to the Unform System of Accounts for
Class A and Class B Telephone companies to better serve the informa-
OFFICE OF TELECOMMUNICATIONS POLICY STUDIES AND RESEARCH CONTRACTS AT FEB. 16, 1973-Continued
Year contract let
Jack Faucett Associates.
Clendenon & Brown..
Arthur D. Little, Inc..
FISCAL YEAR 1973
Law Enforcement Assistance
To identify and qualify the economic impacts of alternative policies for
To study multi-part tariffs in pricing selected common carrier services___.
Survey potential utility of closed circuit television with 2-way voice by
To determine the potential effectiveness of modern communications
To purchase a comprehensive study describing the telecommunications
To support the Los Angeles Command Control Communications project
Provide the necessary personnel, services facilities and materials for the
attention will be given to the present and potential access problems,
28,,845 121, 750
Dr. Donald J. O'Hara.
Study economic efficiency of the use of the radio spectrum with principal
Prepare a detailed cost study and report setting forth and evaluating
Analyze economic aspects of the mix of telecommunications facilities in
RESOLUTION ADOPTED BY EXECUTIVE BOARD OF COMMUNICATIONS WORKERS OF AMERICA
BROADCASTING OR "NARROW CASTING"?
The language of George Orwell's "1984" was "Newspeak," by which truth became falsehood and freedom became slavery.
Recent activities of the Executive Office of the President has indicated that the Nixon Administration has made an Orwellian policy decision to continue its attacks on the First Amendment to the Constitution, by attempting to bring the free press under White House control. If the Administration succeeds, it will make broadcasting into "narrowcasting."
The key issue in the "Pentagon Papers" case was that for a 2-week period, the First Amendment was in a state of suspension by a court edict, which was rolled back by a 1-vote margin in the Supreme Court. Regardless of the merits of the Vietnam war, the press should have been free of government interference in the publication of the papers, since genuine national security was not involved. In November 1969, Vice President Agnew opened the administration attack on the free press, by his criticism of the broadcasting industry. Since that time, he and others speaking for the President have increased the drum-fire of hostility toward broadcasters and other news media.
Late in 1972, the Administration succeeded in its attempt to subjugate the Corporation for Public Broadcasting, which had been established by the Congress in 1967 as an independent entity. The Administration has all but eliminated effective public affairs programing on the public broadcasting network. Its efforts