procedure provided by the bill. All the agency has to do is take the case up on its own motion.

Senator AUSTIN. That is a rather fanciful theory.

Senator HATCH: You could object to the rulings of the Supreme Court on the same ground, could you not? Could you not refuse

to accept the rulings of the Supreme Court?

Mr. RHETTS: I believe, Mr. Chairman, you haven't got quite the same situation.

Senator HATCH: I will say, having been an inferior judge myself, and being in utter disagreement with the decisions of the Supreme Court, I nevertheless followed the rulings of the Supreme Court.

Mr. RHETTS: The situation which I am posing may seem fanciful, and yet it has happened. It has happened where the hearing commissioners have not the independent status which would be provided by this bill. I know an instance in which just that has happened, in which a trial examiner simply declined persistently to apply an interpretation of the provision of an act. The failure to apply it always results in an entirely different decision, and he persistently 1efused to pay any attention to that interpretation.

I think when you have that sort of situation, the man's usefulness in the agency is clearly not great.

Senator HATCH. I will just observe there, of course, that condition may arise, but the agency is amply protected by its own power as to the ultimate decision; is it not?

Mr. RHETTS: It is protected. It can cure the thing. It means to the extent that you have that condition, an agency must, in each case, on its own motion bring up the case for further consideration. It further extends the time. It is a delay mechanism, in fact.

Senator DANAHER: May I ask a question, Mr. Chairman?
Senator HATCH: Yes.

Senator DANAHER. Why would not you reach much of your difficulty there, Mr. Rhetts, by turning to page 13 in line 21, where you could provide that the term of your hearing commissioner shall be either coincident with or less than that of the policy-making head? Mr. RHETTS. I think that is certainly an important feature, also, and that might well go far toward the solution of the problem I have in mind.

Senator DANAHER. Then you would not have a lot of left-overs.

Mr. RHETTS. That is right. Of course, as to that problem, incidentally, in this bill the tenure is 7 years. Of course, in S. 674 it is 12 years.

Senator DANAHER. Have you considered at all the matter of tenure So you might express your view on it at this point?

Mr. RHETTS. I think certainly that the 12-year period in S. 674 is too long. I think the 7-year period provided in this bill may be too long. I think that a term coincident with the normal term of the agency head would be all right.

Senator HATCH. Four years?

Mr. RHETTS. Four years.

If there was some desire to make some overlapping, I should think it should not be more than 5 years.

Senator DANAHER. I thing you get all the control you want in the sense that you can review all the decisions within the agency

on the one hand, and at the same time control, through the policymaking bureau, the tenure of office of your hearing commissioner. You will not have "lame ducks" in there that are going to press somebody else's policy in contravention of the policy-making agency. Mr. RHETTS. Of course, I do not regard it as one of the major problems in this bill by any manner of means, but to some extent that problem exists. While I think your suggestion on the matter of tenure is sound and will go far to help in that condition, I think it might not wholly dispose of the problem. I thing the instance I have in mind is an instance in which that condition existed, and there the man had no fixed tenure at all. Reducing the tenure will not wholly dispose of it, but it will go far.

Senator DANAHER. At this point I would like to request of Mr. RHETTS that he file with the committee a supplementary memorandum in this very particular, dealing with the Wage and Hour Administration and similar phases of problems within your entire Bureau. I would like your thought on that.

Mr. RHETTS. On this tenure question?

Senator DANAHER. Yes. Will you do it?
Mr. RHETTS. I will be glad to.

Senator HATCH. All right, sir.

Mr. RHETTS. I was speaking of the provisions of title IV relating to declaratory rulings, and I pointed out that our difficulties with the title arise largely in connection with its possible application to matters in which the Department does not, in a strict sense, have power of adjudication, but merely undertakes to render advisory views or estimates of interpretations which the courts will probably place on legislation. This uncertainty in the operation of the title is responsible not only for many of the questions on this title, but for many of the perplexities in the bill.

In section 102 (a) the term "agency" is defined to mean any subdivision of the executive branch "which is empowered by law to determine the rights, duties, immunities or privileges of persons * * * by the making of rules and regulations or by adjudications which are unreviewable except by the courts." It seems clear that the whole bill should only apply to any agency to the extent that it does have this type of power. Ootherwise, an organization which has such powers for some purposes, may be an agency for all purposes, including activities in which it has no power to determine legal rights. In these circumstances the bill gives rise to great difficulties since its provisions do not really fit such activities as the rendering of advisory interpretative opinions as to the coverage of the Fair Labor Standards Act which have no binding legal effect whatsoever. Consequently, we suggest the amendment of section 102 (a) so as to make a subdivision of the executive branch an agency only to the extent that it is empowered to determine legal rights, and so forth, of persons. Senator HATCH. Of course, that is obviously the intent.

Mr. RHETTS. I think it is, Senator. I think it certainly is the intent, and I think by making that absolutely clear, many of the difficulties in this bill would be cleared up.

Such an amendment will remove the questions which we have concerning title IV. Except in very limited circumstances, no person in the Wage and Hour Division has any power to adjudicate. The in

terpretative opinions rendered by the Administrator for the assistance of members of the public and to indicate the policy which he will pursue in instituting enforcement proceedings in the courts are in no sense determinative of legal rights of persons. These questions of coverage, questions of what activities constitute commerce, or interstate commerce, are not appropriate for administrative declaratory rulings. Such rulings would have no effect if rendered, because they would and should be subject to determination de novo by the

courts.

As I have indicated, the provisions of this title are not workable. when applied to such matters. For these reasons we consider that the particular type of declaratory ruling procedure set out by title IV is inapplicable to Wage and Hour Division business.

Senator HATCH. You will file that supplementary statement in connection with this matter?

Mr. RHETTS. I will be glad to.

(The supplementary statement of the Labor Department appears in the Appendix, final part of the hearings.)

Senator HATCH. Are there any questions?

Senator AUSTIN. I wonder if you know anything about what is being done to clear up the conflict in a decision between two district courts, the one in Texas and the other in Minnesota, relating to minimum wages and maximum hours?

Mr. RHETTS. Yes, Senator. The Belo Corporation case, to which I believe you refer, has been appealed and it will be argued May 28 in the fifth circuit.

Senator AUSTIN. And is there an appeal in the Carleton Screw Products?

Mr. RHETTS. NO. My understanding is the defendant will not appeal in that case.

Senator HATCH. The decision in the Texas case will determine the question?

Mr. RHETTS. Yes, presumably.

Senator HATCH. That is what you hope for?

Mr. RHETTS. I just learned that the decision in the Minnesota case, the Carleton Screw Products case, is also going to be appealed by the defendant, so we will have both cases up.

Senator HATCH. Is there anything more, Senator?

Senator AUSTIN. Is there any special effort being made that you know of to expedite the progress of those cases and get them into the Supreme Court?

Mr. RHETTS. For our part, we are very anxious to have the question settled. My understanding is-I can check this-but my undertanding is we have proceeded with all possible speed to appeal the Teras case.

Senator AUSTIN. That is all you know about it?

Mr. RHETTS. Mr. Levy, the head of our Litigation Division, is here.

Senator AUSTIN. I might ask him.

Mr. LEVY. We moved to expedite the hearing in the Texas appeal, and the fifth circuit court granted the motion and set it down specially for May 28. Otherwise, it would not have been heard until next fall.

Senator AUSTIN. Will a corresponding effort be made in Minne sota?

Mr. LEVY. We are the appellees there. We would certainly join in any such application there.

Senator AUSTIN. In the issues regarding the milk marketing agree ment of the A. A. A., they secured very rapid progress in a grea: number of cases, I think there were 30 or more. They went righ through to the Supreme Court, and the decision was rendered very expeditiously in those cases. That shows how a thing can be don when both the Government and the individual are interested in al expeditious decision on the law question.

Mr. LEVY. We understand that the Supreme Court has indicate! that this would not be approved except for unusual circumstance that is, the skipping to the Supreme Court, where the case would come up on direct review from the district court.

We have in this case moved specially to have the case heard before it would be heard in the normal course of events.

Senator AUSTIN. That is in the circuit court?

Mr. LEVY. In the circuit court.

Senator HATCH. Thank you, Mr. Rhetts.

Mr. RHETTS. I would like to add just one thing. In addition to the matter on this tenure question, I wonder if it would be acceptable to your committee if I were to file a further written statement on some of the less major matters, but nonetheless particular difficulties on some of these questions, if that seems desirable?

Senator HATCH. I think, Mr. Rhetts, that any suggestions you have to make would be gladly received by the committee. Mr. RHETTS. Thank you.

Senator HATCH. We want to work out the best bill we can.

If there is anything you want to call to our attention, we will be glad to have you do so.

Mr. Fly, from the Communications Commission, is present, and will be heard this morning.

STATEMENT OF JAMES LAWRENCE FLY, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION

Senator HATCH. For the purpose of identification, will you give the stenographer your name, position, and in what capacity you appear before the committee?

Mr. FLY. James Lawrence Fly; Chairman of the Federal Communications Commission. I might say, Mr. Chairman, perhaps I should not pretend to appear here in the capacity of an expert.

Senator HATCH. Well, you have had some practical experience with the problems we are considering. Whether you are an expert or not, we will be glad to have the benefit of the experience that you have had, Mr. Fly.

Mr. FLY. Thank you, sir.

As you gentlemen know, the Communications Commission has to do with all forms of communications which are impelled by electrical impulse. It deals with such subjects as the telegraph, the long lines telephone, the cables, the radiotelegraph, the radiotelephone, interna tional broadcasting, domestic broadcasting, television, facsimile broad

Pasting, licensing and supervision of the amateurs and radio operators, and in greater measure the licensing and supervision of the radio operators aboard ship. It lays down the standards in vast detail for the entire industry, the equipment, and conditions under which that equipment may be used.

I think, Mr. Chairman, the thing that is first pretty readily apparnt is the need for very substantial flexibility. I cannot imagine, taking only our own agency, that we can deal with the regulation of a complicated rate structure-the rates, for example, of the American Telephone & Telegraph Co. which, as you know, moves us into a pretty important and complicated and difficult field of cost investigation and rate-making-I cannot imagine that that is to be closely compared to the granting of a license for a standard broadcasting tation or an application for the extension of a single telegraph line, for example.

Now the tendency, I believe, of course, in all of the bills, and particularly in S. 674, is to limit the flexibility with which those diverse problems can be met and the diverse functions performed.

We have given some consideration to both of the bills, that is particularly S. 674 and S. 675. Now we all think that there is a lot of good in those bills, and in commenting adversely upon the bill prepared by the minority of the Attorney General's Committee I would want explicitly to recognize that it was conceived and was drafted, as I understand, by able, conscientious lawyers who were deeply concerned with the whole problem of Federal administrative procedure.

I think that the drafting of S. 674, however, proceeded upon two fairly explicit and important assumptions: One seems to be that if a code of judicial procedure is possible-and we have had some questionable examples in that field in the course of history-that if a code of judicial procedure is possible, then something along the same line can be done for the administration of the administrative agencies. And it seems also to be assumed that the element of flexibility can be cared for by making certain exceptions, providing for certain ways out of what would otherwise be a rigid system.

Now it occurs to me that in so readily transferring the idea of a judicial code into the administrative field there has been a tendency to overlook the real reason why we have those administrative agencies. I would conjecture that the greatest reason is that we have specialized helds, not merely special problems in the law and in Government, but special problems in terms of administration and special and vast problems in science. In this particular field you are moving into a scientific field that has great breadth, it has vast detail, it is constantly on the move, it is advancing, and many and varied are the problems that arise. I think it is that sort of a situation which best illustrates the need for the administrative agency. So when the suggestion is to move backward into the more rigid terms of judicial procedure and judicial codes

Senator HATCH (interposing). Mr. Chairman, you realize, do you not, that those fields are not new, that the courts have been dealing with scientific problems and things of that sort, things of a specialist nature for generations?