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Reprinted from the New York Times, December 11, 1961.

WASHINGTON, Dec. 10 -- The Federal Communications Commission played an extraordinary role in the lengthy maneuvers that ended last week in assuring educational television for the New York metropolitan area.

The commission abandoned its usual passive stance and aggressively promoted the educational proposal. According to those involved, the plan to sell WNTA to an educational group could never have succeeded without the commission's activities behind the scenes.

The commission's performance has aroused deep interest and some controversy in the radio-television industry and among administrative law experts.

Some see the commission's actions as a welcome change from the generally stodgy, uncreative performance of the Federal regulatory agencies. These observers say they wish other agencies would go out and fight for what they consider to be the public interest.

Others are more skeptical. They agree that the end, educational television, is desirable, but they suggest that some of the means used were unfair and could set unhappy precedents for other cases.

On one thing all agree: The commission's involvement in this case was remarkable. The extent of that involvement is not generally known. It goes al the way back to the beginning of the educational idea last winter.

One morning last February Newton N. Minow, chairman of the commission read an article in the New York Times that said an educational group had offered $4,000,000 for station WNTA-TV, Newark.

WNTA, operating on Channel 13, had just been put on the market. The story said that at least one commercial bidder confidently expected to top the educational offer.

To Mr. Minow this looked like a rare opportunity to bring non-commercial programs to the country's biggest television audience. Although the commission had long wanted an educational station in New York, all seven available regular channels were assigned to commercial users.

Mr. Minow asked his fellow-commissioners how they would feel about action to encourage conversion of Channel 13 to educational use. He won their enthusiastic support - and kept it throughout the subsequent dealings.

In March, Mr. Minow made known that the educational proposal had what was termed his "moral support." But at that time the proposal seemed to face bleak prospects.

<b>Commercial Bids Higher</b>

The educators had raised their bid to $5,500,000. But one commercial bidder had offered $6,600,000, and another had bid more than $8,000,000 for WNTA-TV and a companion radio station.

At this point the commission stepped in officially. On March 29 it issued a most unusual document termed "Notice of Inquiry."

The notice began by deploring the absence of educational television in New York and Los Angeles, two of the largest television markets and cities with "abundant resources" to create educational programs.

"In view of the incalculable benefits which non-commercial service could bring," the commission said, it wanted to figure out some way to convert one of the seven commercial channels in each city to educational use.

The notice invited comments from the industry on how this could be done and "the bases on which it would be appropriate to select the channel to be so assigned."

Lengthy Proceeding

What made this document especially interesting was the fact that the commission must have known how it would have to proceed to reassign a commercial channel to education. It would have to hold a lengthy rule-making proceeding.

The "Notice of Inquiry" was in fact regarded in the industry as a not-so-gentle hint to WNTA that it had better sell to the educational group. And WNTA certainly took it that way.

"That notice was the ball game," one observer said. "WNTA knew it had to sell to the educators."

The commission has only limited power to scrutinize proposed transfers of radio and television licenses. But in view of the commission's known attitude, there was always the chance that it would find some ground to disapprove the sale of WNTA to a commercial bidder, ar at least to take its time in approving.

Pressure by Stations

The notice of Inquiry also had the effect of making owners of the six New York television stations favor a sale to the educators. If that did not happen, it was feared that the commission might get serious and take one of their channels for non-commercial use.

On June 29, WNTA signed a contract of sale with Educational Television for the Metropolitan Area Inc. The price was $6,200,000.

Of this, the three television networks and two New York independent stations were to contribute $2,000,000. Their generosity was evidently motivated, at least in part, by the knowledge that they were helping to eliminate a commercial competitor and were forestalling the possibility that one of their channels would be taken over for educational purposes.

It looked to the uninformed as though the matter were concluded. But the legal battle was just beginning.

Gov. Robert B. Meyner of New Jersey vigorously opposed the sale. His ground was that it would transfer control of Channel 13, New Jersey's only television station, to a New York educational group.

The commission rejected the Meyner arguments and approved the sale. It found that the educational group planned to offer as much New Jersey programming as WNTA had in the past or more.

Meyner Goes to Court

But the governor went to the courts and there made some headway. He won a stay from the Court of Appeals here. On rehearing, that was set aside. But Governor Meyner has succeeded in raising substantial legal doubts, and at that point the situation became critical.

The educators could not pay WNTA the purchase price unless they received some guarantee that they would get it back if the courts ever upset the deal. The foundations and others supplying the money would not risk it.

WNTA could give no guarantees.

Under the contract, either side could cancel on or after Nov. 27 on five days notice.

On Nov. 28 WNTA issued a notice of cancellation.

At this point commission officials knew that the only way to save the proposal was to work out some compromise between Governor Meyner and the educational group. Only such an agreement would take the case out of the courts, lift the legal cloud and allow the educators to go ahead.

But there seemed to be no hope of that kind of agreement. The deal looked dead. For all practical purposes it was - until after a cliff-hanging week-end of negotiation.

From the commission's point of view, the process began with a telephone call from an educational group's lawyer to Mr. Minow's administrative assistant, Tedson Meyers. It came at 9:30 P.M. Dec. 1, while Mr. Meyers was hanging wallpaper in his home here.

The news was that Norman Cousins, editor of The Saturday Review, had arranged a conference between the educators and Governor Meyner. Could the commission be represented?

Mr. Meyers called Mr. Minow. It was agreed that Mr. Meyers should go - if Governor Meyner liked the idea. The governor was sounded out through his lawyers here, and shortly after midnight Mr. Meyers got the word that he was wanted.

The conferees met all day Saturday, Dec. 2, at Morven, the Governor's Mansion in Princeton, N.J., Mr. Meyers spent the night there.

The next day Governor Meyner met privately with two of the principal figures on the educational side, Howard C. Sheperd, president of Educational Television and retired chairman of the First National City Bank, and Devereux C. Josephs, a vice chairman of the New York Life Insurance Company.

Talks in Stalemate

The talk ended in a stalemate. In the middle of the afternoon the conference seemed about to break up in failure. Then, Mr. Meyers, acting in behalf of the commission, intervened. With all the participants there, he warned both that they would have to give ground to make possible an agreement in the public interest.

He told the educators they would have to make some more specific commitments on New Jersey programming, and he urged Governor Meyner not to try to bind a creative business too tightly to particular agreements.

Then Mr. Meyers spoke separately with each side. He suggested, according to their reports, that he be allowed to try his hand at drafting an agreement between them - without their presence for the moment. They agreed.

Mr. Meyers went into Governor Meyner's library. There he telephoned to the commission, where a group of lawyers and others had come in on Sunday in case they were needed on the negotiations. Then he typed out, on yellow legal paper, the document that turned out to be the key settlement.

This was a letter from Educational Television to the commission setting forth some new proposals for New Jersey service. The idea was for the commission to answer, accepting these ideas and making them part of the offical record.

When Mr. Meyers showed his draft to the negotiators, they said it could be the basis for agreement. At 2 o'clock the following Monday morning, after many more telephone calls back to the staff members in Washington, a final draft was accepted.

The cancellation notice by WNTA was to become effective at the close of business that day, Monday.

At 9 A.M., back in Washington, Mr. Meyers showed the agreed-in letter to an F.C.C. staff meeting and won its approval. An answer from the commission was drafted.

At noon, in New York, the Educational Television board met and approved the letter. A courier took a plane to Washington with the official copy.

At 3:40 P.M. the commissioners, who were hearing an important oral argument, took a brief recess to study the letters. They approved.

Mr. Meyers telephoned the State Capitol in Trenton. At 4 P.M. Governor Meyner announced the agreement.

That left just one step - a vital one legally. The appeal had to be withdrawn from court.

Appeal is Withdrawn

A commission lawyer, Ruth V. Reel, had prepared the necessary document. New Jersey's Washington counsel, Sigmund Timberg, was waiting for her at the courthouse. He signed at 4:50. Mr. Meyers telephoned Educational Television that the appeal had been withdrawn, and a WNTA lawyer waiting at the office was told the news.

And so a cliff-hanging victory was won. The question is whether what the commission did was wise in the longer view.

As far as Mr. Meyers' participation in the final negotiations, neither side expressed any objection when questioned.

Mr. Timberg, who was there for Governor Meyner, said settlement became possible when "both sides began to recognize that there were two public interests involved - educational television and New Jersey's interest in a forum for information about its civic affairs.

"In achieving a solution," Mr. Timberg said, "Mr. Meyers' services were invaluable."

"My own feeling was that his role was perfectly appropriate. The F.C.C. was actually a party to the litigation and had every right to take part in the settlement."

Educational Television's Washington lawyer, Henry G. Fischer, put it more strongly.

"If Tedson Meyers had not been there," he said, "there would have been no settlement. It would have been inconceivable."

Called a 'Catalyst'

"There were times when emotion ran so high that we wouldn't talk to each other. He was the catalyst who brought this agreement about."

On the broader question of the commission's role, not only at the end but also, all the way through the maneuvers since last winter, there is dissent from the industry.

One of the commercial bidders for WNTA complains bitterly that he was treated unfairly. He argues that the commission effectively cut him out of the picture by using a disingenuous device, the Notice of Inquiry, and without giving him a hearing or any chance to argue his side.

Persons in the industry not directly affect by this case have also expressed concern privately. Everyone approves the goal of educational television, they argue, but suppose the commission began coming down for one side in a wholly commercial contest? Shouldn't the commission be more judicial?

The opposite view, approving the commission's actions, was expressed by Fischer.

"I think it's a wonderful thing for a regulatory agency to take affirmative steps to bring about implementation of a policy it feels strongly about," he said.

"The point is that there was a policy here. This was not just a commercial contest. The commission has been calling for educational television for years."

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Copyright © 2003-2012 Tedson Meyers.