# Unknown title — Public Utilities Commission v. Pollak

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0143%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Unknown title
- **Published:** January 1, 1951
- **Citation:** 342 U.S. 848

## Text

5

or cost on’ the, part of the Company. On this basis Mr.

Strouse jnstalled a single réceiving set in a —s and
a single receiver on a bus. 7
The 44 usie as jyou ride’’ bus was operated on various

lifes at various hours of the day during ife w eek of

io3- Maren: 15, 1948 in order‘io gei a cross seciion of ex-
» petience. The car. was operated on the Mt. Pleasant
line dnring the week of Mareh 22, 1948. ' During this period |

the passengers were “polled by card as ta their reaction to .

the ‘musit as you ride’’ program.
At the end of the two-week period the cards were tabu-

lated They showed that 92 per cent of the bus and street-
car passengers preferred‘ megic as you ride.’’ The cards °

used in the~poll were distributed by students of George
Washington University.. They were tabulated under my

supervision: , s

_* While the poll clearly indicated public preference for
‘“‘Musie as you ride,’’ we felt the sets had not been per-
fected sufficiently to place-miore of them on the vehicles
at that time. However, we showed interest m the expefi-
ment ‘and on the basis of these tests continued talks.‘with
Mr. Streuse. In fhe meantime other cities were experi-
menting and the receiving sets were sufficiently improved
to warrant further experimental installations. :

' On February 10, 1949, 10 sets were installed and broad-

casting began. By February 18th twenty-one sets were in-

stalled, pt-on busses. As I stated before, the installations

have been progressive since that date, the 212) set being»

‘installed on September 27th.. Special he hed oeape.: be-
gem after the first installations.

Q. Will you please tell ais the reasons that moti-

159 vated the ‘‘misic as you -ride’’ installations begin-

ning with the February 10, 1949,° installations, A.

There were two reasons: (1) We felt that our pessengers

would like the diversion of music as they rode,dased on

the 1948 survey; that it would help them pass the time

more pleasantly, and that it would make their ride seem
shorter. Sng ae

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36 eres a

(2) ‘Axipties Garcon was. our operating costs, were rising.

a

‘and still are. As a matter of fact we showed deficits in*

July and August, 1949 and only a small net income in Sep-
tember.

‘We consider it part of our responsibility in providing

good transportation at reasonabie rates to expiore and

encourage every possible means of reverue even though it |

does not come directly from the rider. The advertising

revenue that can be obtained from any ‘‘:nusie as you ride”’ |

arrangement presents that oppertunity. | The money
earned thr ough this method is credited to our Gross Reve-
nues and thus is reflected 1 in our Operating Income. This

relieves the passefiger “of paying the complete cost of his

transit ride to the ¢xtent advertising revenues are earaed.

In other words, for the privilege of advertising, the ad-
‘vertisers of transit radio help pay the t of the ride to
‘the transje ‘der. The earnings from this source we felt
had iiaportant potehtials and“in the interest of our passen-
ae gers We could not ignore it. We felt that we should
160 take advantage of this means to help relieve the

pressing neede for more revenue.

Q. Will you please tell us whether or not: any contract

was entered into with respect to the ‘‘musie as you ride’’

installations in Capital Transit vehicles? «A. Yes. A con-—

tract was entered into between the Capital Transit Com-
pany and Washington Transit Radio, Ine.

Q. I band you. a document headed ‘‘Agreement’” a nd —

dated | Deenben, 13, 1948. Is this document a correct copy

of the-contract you referréd to in your previous answer?’

A, It i a, -" ff oan ‘ 5

Mr. Awalt; Chairman, may I have: this document Wd

Le

- marked 4s ¢ sdanpamaed Rath NOT Yorlithentifeation ’
Chairman Flanagan: It will be so marked.

* : * * .. . * + : 6 y * oe: 3

/Q. Mr. Giddings, will you briefly explain the financial ar-

rangements sét forth in thm=ontract, known as Ex-.

161 hibit No. 1? A. Essentially it provides for a mini-

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mum ‘payment of $6 per \month for each vehicle hav- .
ing a receiving set. As thé gross income from advertising |
tises, the Company proportionately benefits. Inasmuch as
“this is a new media and is only in its beginning stages,
there is no experience as to the ultimate potential return.
We feei, however, titat it can be very materia! and substan-
tial if given the opportunity. to progress: -
Q. Now'I understood you to testify that ’as of Septembtr
15, 1949 the total installed sets were 212? A. October 35,
Mr. Awalt. . x
. Q. October 15. On this basis, what is your present in- |
come from the ‘‘musie as yeu ride’? installations as of
“Oetober 15, 1949 A. $1272.a month or $15,264 a year. ¢
This is based on the minimum $6 a set as provided in the
contract. 3 Sis a es : ;
Q. Is it the intention of Capital Transit Company to in-
stall additional sets in other vehicles not new équippedt
A. Yes. We contemplate eventually a total installation
of approximately 1500 sets. ees 3 :
, @ On the basis of 1560 sets, what would be’ your income
from this source at thé minimpyh‘rate of $6)

pera

edge“and reputation in musi¢ selection would meet the ap-

8

proval of the minority.

Dd * * . a e * . a

- 166 9. Mr. Gidding gs, can-you tell me w shether any i in-

structions have been given to ‘the operators to turn
off radio sets in any of the vehicles at any time? “A. Yes, —

sir; they have such instractions in the event that they con-

sider the set too loud, that is, playing tow loud or some-
thing being wrong with it.
Q. Mr. Giddings, did you as vice president of the Capital

_ Transit Company take uo with the superintendent or head
‘of the Police Department, the question of the need for a
-heense under the Police Regulations? A, Yes, sir.

- Q.- What did they advise you? A. They advised me that

“tis felt it was not within their jurisdiction or their re-
3 ——

* * .* ; * * e a * *
_€ross-Examination :

168 ——-BY Mr, Pollak:

Q. Is there aRy other transit company which oper-

ates trolleys or busses in Washington to pick up, the pub-

lic in Washington and deposit it in Washington? A. Not
to my knowledge. I am sorry, Mr. Pollak, there is one

- other company that does that.

Q. Which is that? A. The Washington, Marlboro sna :
Annapolis Line.

~ 169 Q. That. picks up passengers in Washiiigton and

discharges them in, Washington? A. -Yes, sir.-
. * * * . - + + *
199 Redirect Examination
:
By Mr. Awalt: .

Q. One question, .Mr. Giddings. You mentioned the
Washington, Marlboro and Annapolis Line, I believe. De
you Know whether they have radics on their buses? A. I
understand sg.-——

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40

. ‘» 200, Hulbert Taft, Jr., was called, as a aes and,
after having b-en duly. sworn, was examined and

testified as follows: | aN ,
Direct Examination i 7 ns)
By Mr. Dowd: ; ? ree

Q. Would you state yen> ‘name and residence for the ree-
erd, please? A. Hulbert Taft, Jr., Cincinnati, Ohio. |

Q. What is your occupation, Mr. Taft? A. I am execu-
tive vice president of Radio Cincinnati, Inc., a company
which operates a standard broadcast station, television
station, and a transit radio station.

Q. Do you haye any connection)with Washington Transit
Radio, Inc., or Capital Transit Company? A. T-do not.

Q. You mentioned that your company: operated a broad-
casting station and transit radio receivers. . . Where is that
operation? A. That’ oper}tion is in Cincinnati, Ohio.

* * * * * *° 3 * e @

201 (). Mr: Taft, you mentionec that: you are interested

in the transit radio operatio in Cincinnati. Do you

_ have any knowledge as to any other cities that may Have
this type of operation? A. Yes, I do.

Q. Would you name them, please? A. Transit radio is

_ now in operation in Cincinnati, Ohio; Houston, Texas; Bal-.

-timore; Maryland; St. Louis, Missour?; Wilkes-Barre,
- Pennsylvairia; Evansville, Indiana; Topeka, Kansas; Des
Moines, Iowa; Worcester, Masachusetts; Tacoma, Wash-
iy ington; Allentown, Pennsylvania; Huntington, West Vir-
_ginia;’Suburban Pittsburgh; and Washington.

a

‘Q. Do you have any information as to how long transit |

ne radio has been in operation in those cities and how
202. many sets may be in use’at the.present time? A. Yes,
I can give you the complete information: on that.
Cincinnati was the first operation beginning July 10, 1948.
| There are now 475 vehicles equipped | in Cincinnati.
Commissioner Lauderdale: Do you know the total num-
ber of vehicles in’ the cities?

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nati, do you have any persgnal knowledge as to the. acs.

epee
The Witness: Yes. 4
Commissioner Lauderdale: Would you 1 mind giving that?
The Witness: I can do that by cities and give you the

total:

‘There are 2,945 vehicles equipped in these eifies.
“Mr. Dowd: I think what the Commissioner was inter:

ested in knowing, for instance, in Cincinnati you state you —
fiave’ 475 receivers, What is the total number of vehicles |

~

in Cincirmati? - :
The Witness: It is saccataniaie 50 per sent of the to-
tal vehicles. It is about 80 per cent of the total available
vehicles, by which I,mean that in the old-fashioned street
cars transit radios are not feasible because of the high
noise level in those cars. We are installing them in about
80 per cent of the vehicles” which we believe to be suitable
for this purpase. . é

In Houston, Texas, there are , 270 equipped vehicles ; in,
St. Lowis,. approximately a thousand; in Wilkes-Barre, -
about a hundred; Evansville, 110;"Washington, 220. subur- .

_ ban Washington, 30; Topeka’, 50; Des Moines, 50;
203 Worcester, Massachusetts, 290—incidentally- a com-
plete installation; Tacoma, Washington, 135; Allen-

town, 73; Huntington, O3 y suburban Pittsburgh, 75:

Qo

_ By Mr. Dowd: " ? tor age ats: :

Q. Did you mention Covingtotat any time? ALT in-
clude Caé¥jngtor | in the Cineinnati figures2+0 Af

Q. Is that a separate transit company ? A. There are
actually three companies: the Northern Kentucky, which
operates into Cincinnati, is the Covington, Newport and
Cincinnati Traction Company, the Green Lmes—that is a

Q. As the person-in charge of the operation in Cincin-
ceptance by the public of transit. Fadio- in thay eity? . A.

Yes, of course. Four different. suryeys: have been made. ig
Cincinnati, including’ northern Kentucky.-. - Before the: Cin-

cinnati Street Railway Company or the Green: Lines en-

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‘complete installation, all of those except for 12 street cars. oe

"\ 42 :
a ar REINS Res tr
‘tered into a contract with us, they were very insisteut
that as complete a tabulation of rider opinion be obtained
as possible. Obviously. we were just as much eoncerned,
we Were perfectly aware that without a large measure of
nublie support the whole project wouid fall to the ground.
Theref ore before a contract was drawn with either of thes®
- companies, more than 5,000 ballots were taken on a
204 .’vandom basis in the vehicles in those two cities and
_we obtained over 90 per cent favorable replies/*

After three” months of cperation we made a recheck and

took abont 1,500 ballots and the result was very ‘much the
same. ‘Only two or three months ago, ‘after a complete
year of operation, in order to determine what'the continued
thought of the public was, wé took a third survey with al-
most an identical figure in favor.

Mind you, we are as aware of public pgs as any-
‘body else is. We can not possibly succeed unless we have
a very considerable majority who favor. it.

Q. Mr. Taft, have you received any information from”
‘any of the cities in which transit radio has been in opera-
* tion which indicates ‘that the installation may or, may not
_have any effect on the safety of operatiens in those ‘cities?
| A. Yes. - In Cincinnati, although no specific survey has
been made, the satety director of the’ Cincinnati Street
; Railway Company has advised us that in no. ‘Sense has radio

in buses contributed to accidents in one year of experience.
‘The figures in Cincinnati show -tliat for the first eight
months of 1949%as against the same period in 1948 there was
a 13.3 per cént decrease in traffic accidents involving public™

vehicles. ; ries :
. Q: You axe not maintaining, are you, ‘Mr. Taft, thaf that
Sat 13.3. decrease is due solely to the installation of.

205 radios? A. No, Lam not mainfaming that. I don’t

think’ sufficient information is available either in.
Cincinnati or in the other cities in which we are in opera-
tion to prove that définitely. I think the figures there ang
in other cities certainly do prove that.there is no increase

.

Se aoe

, 4s

in accidents because of radio and I thisk there is some in-
dication that the accident rate tends ‘to (fecline, although I
certainly could not prove jit, where radios are in the buses.

- Q. Do you have any figures in reference to Covington
wae you say you have an almost complete installation?
A. Yés. I think it may be of some interest in Covington
we have 112 out of 127 vehicles equipped. The only
equipped vehicles ate old-fashioned street cars. They ae”
been equipped since July 10, £248. In other words, for

considerably over a year almost a complete installation.
In the first six months of 1949 as ‘against the same period
in 1948 traffic accidents wereedown 31.7 per cent under the
previous period, comparable period.
” I think it is also inteiesting to note that Covington was
‘ one of the safety winners, was one of the three w inners in
its size class of the annual safety award.
oMr. Harrison: May I ask if that 31.7 per cent decline :
in Covington related to public transportation vehicles?
: The, Witness: Yes. .
- 206 Mr. Pollak: Extlusively? fgg

The Witness: Yes. i |

By Mr. Dowd:

@. That related solely to. the accident Aecten for the
transit eompany in whith these radids had ‘been installed as

against their previous period. -of operation? A. That is
correct.

* + * * .¥ * ’ 7 *¢ *

215 R. L. Willoughby was eailed as a witness and, hav-
ing been previously duly sworn, was examined and
- testified as follows: AS 7 :

= 7. Direct E zamination
ite By Mr. Awalt:

Q. Will you please give your name and addfess for the
record? A. R. L. Willoughby, 442 39 14th Street N. W,,. +
Washington, Apartment ,32. ) aa ns Peet Wee

f~

By P ’

Q. Mr. Willoughby, are you employed by Capital Tran-
sit Company?
®% By Mr. Pollak:

q). How much time have you spent yourself driving ve- |

hicles which have. radios installed 4n-them? A. I

290 have no recora of that but I would say I have driven —
about 20 a month, 20 buses or ears so equipped.

'Q. Each, month? A. Kach month.

Q. How much time do you spend in those on the average
roughly on such occasions? {fs it an hour ora day? A.
two or three hours rovghly. * .

_Q. Did you ever ask drivers of street cars w hether they

liked these radio installations? A. I ha@e, especially so. |

_ since this’ investiggtion started... &

Q@. What have they answered? A. Most of them said
that they* liked it and some of them said it dicn’t affect
them one way.or the other. ~~ :;

Q. Did some of them say they did not like it? “A. No, I
haven’t had a single one who, said he didn’t like it?
~Q. When you drive.these buses yourself, or trolley ears, °
-with the radio installations, do von call out the streets
which you are coming to? A. Ido. |.

Q. Do you find that extra effort is required to call them
out when the radio is playing and the buses are stopped for

traffic, for exaniple? A. No, just the. usual tone.
9

- Coen. | Seal : : :

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4 Q. Aré the radios instailed in training vehicles?
221 - .
fap EB. L. Keller-was called as a witness and, having
been duly sworn, was examined and testified as
follows: . ' ¢
Direct Examination /
By Mr. Awalt:

Q. Will you please give your name and Address tt
EK. L. Keller, 4423 Chesapeake Street, N. W.

Q. Are you employed by Capital Transit Company? 7 i
Yes. | & :
. Q. What is your present position? - re IT am instructor
in the operation of buses and street cars. 7

Q. Will you please explain your duties in more detail? -
cA. After operators have figished their initial training, they
enter a probationary period of 90 days during which time
- it is my/duty to follow up with instructions to those opera-
’ #tors assigned to me during that 90-day period. ‘T also

make recommendations on the operator’s ability to perform
his duties.

During this work I of course ride transit vehicles most
of the time. I also have ogcasion, since I use transit ve-
hieles getting to and from the various assignments, to ob-
serve other operators im the operation of their vMbicles.

| Q. How iong have you been employed by Capita®
224 Transit Company?

a

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}
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fered with your efficient operation of a vehicle? - No.

,

Taba ‘bl %

(). TA the course of your duties do you now operate. Capi-
ransit vehicles? A. Yes, sir: .

Q. Why? x Because it has + tendons to keep

the passengers in a better mood and Pes are easily handled -

that way. It also makes it easier on the operator himself,
Mr Awalh: You may cross-examine.

-

By Mr. Harrison:

Q. ‘Did you find in your own operation of radio- -equipped
vehicles, Mr. Nichols, that the sonnd from the receivers dis-
tracted your attention to your. driving? A.o No, sir.’

Q.. Does it tend to “fatigue yon, listening to the abana
drumming out of music, news announcements, weather re-.
ports! A. No, sir, it did not because I don’t allow it to
interfere with my work. When you are driving a_ street
ear your.drties require your fall attention and as far as
the Tadio’ is coneerned you don’t even know it is there.

Q. In oper ating such vehicles could you hear the stn
signals such as a policeman’ s whistle or horns on ‘an fap-
proaching vehicle?*-A. Yes, sir.

a. Q. Have you cperated street cars sith school chil-
233 dren on them? SP pi ee eG

Q. You say-the radio makes it easier on the ns operator”
or street. car - ‘operator? A. Not exactly the radio wakes ¢
it easier. Wher you lave a bunch of* ‘passengers who are.
congenial, friemdby, that has a tendency to cape your work
easier as an operator.
| _Q. And tlre radio makes the passengers ccongénial?

234 . A. That is my idea. phere aR tere

+ * ¥ 3 Y. *. * @ * *

IERIE PS OR AISLING ra aH rE ie PO ENC BES RR US ESE BER AE SS ce, OTe EE AY SPD

K. Cc. McCloskey w as called as a witness and, having been
first duly sworn, was examined and testified as follows:

’

f. Direct eget os
4 “By Mr. Awalt:

—Q: Will you please give your name and ‘address? A.
K. c McCloskey, 9891 .63rd Place, Cheverly, Maryland.
@. Are you anno by Capital Transit Company? A.

Yes, sir.
_Q. How.long have you been in: ne employment of the
company? A, Seven years. ” ri ceie

Q. What is your present position with the com-
235 pany?. A, Safety supervisor. . :
~ - Q. How long have you occupied that pone) A.
Five years.
Q. Will you please explain your Deith “A As “my title
indicates, I am principally ‘charge® with the question of
- safety with respect to thé operation of street cars and buses.
l am interestecé in preventing accideriis of any kind-or na-
ture connected with buses or street cars-and for this reasen,
- among other things, I visit any place where an acejdent
, has oceurred.* I go into the reasons, for such accidents,
whether Such accideis could haye been prevented. T talk
‘4 : With operators as to the prevention of accidents, whether
ythere are any hi wardous: ‘points on their routes and,
whether anything ‘an be dong-to protect these hazardous
points.

®

goers

citizens’ associationsy: luncheon clubs, oa Se parent-
teacher er and so forth with. illus ‘ating motion

“ee a aa

eens cs.-

| Q. Mr. McCloskey, have you ever been an operator of a
street ear or bus?) A. ‘Yes, sir. .
Q. In the course of your duties do you ever now

236 operate a street car or bus? A. Yes, I do‘in order —

to check the safety. factors.

Q. What was your reaction when you first learned that
radio receivers were to be. installed on street cars and
buses of the Capital Transit Company? ‘A. I was. opposed
to such installation. I felt that radio. reception. would in-
tegfere with the efficient operation by operators of street
ears and buses and would decrease the safety factor.

Q. Do you still feel the same way? A. No sir, I do not. .

I have found in my study of accidents or safety. factors

‘

that the radio does not in any way interfere with the effi-

éient operation and I-have found that it has not been the

cause of any ares :
Q. Have you talked to any of the eperaioes: Sth respect

to the: opel ration of radio- equipped vehicles? A. Yes, I_

have talked to approximately 500- operators’ and I have
found. only one who was opposed to the radio.
Mr. Harrison: You said only one?

>

“By Mr. Awalt: - Pitas Gy 2

Ce 2

"Mr. ‘Awalt: Yes. Wi aes ain a eo,

% 3 or . ¢f “24 .
Q. Haye’ you, found In your .own, operation of radio- |
equipped vehicles that the program ‘eceived distracted :
your attention in any way from the sepbbcnani of the ve- .

hicle? A. No, I have not.

! Q. Mr. McCloskey; “where in your opinion do the |
237 ~~ greatest number of ‘traflie accidents occur in the Dis-
, ‘trict of Columbia? A. In. & Ot is known as thie’
~Gngested. ‘business see tion. By congested bifsiness section

4
‘

Lhave a general knowledge as to the cause of accidents. A
I also give short talks on safety to public bodies such as

Pi eae Ex tes
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Gu het
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Laer!
mary

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I mean the area of about eight blocks long and six wide,
bounded ‘on the east by 7th Street, Northwest; on the
west by 15th Street, Nerthwest; on the south by Pennsyl-

vania, Northwest; and on the north by New York Avenue,
Northes net. Thea ares ze approximately ane. sanare mile.

AVW!A UE

‘Q. When you say. the greatest number, what exactly do
you mean? A. I mean the area I. just described as com-.
pared with any area of similar size in the District.

Q. What is the approximate area of the District of Co-
lumbia? A. Approximately 68.9 square miles.

Q. What, percentage of Capital Transit traffic accidents
occur in this one-square-mile ayea as compared with the
68.9 square miles area of the entire District of Columbia
A. Approximately 11 per cent:
tee Q. Do you know the ntmber of lines ov which radio-
cnuiowad vehicles are used that travel into, or through this
congested business section? A. Yes sir, 32 enigr or travel

through such area out of thé 43 lines’.on which radio-

; equipped vehicles run, or about 76 per cent. Eleven.
al do not travel in the congested business section as

. defined by me.

Q: \of all the lines running into this scnweotod section,
any lines do not have radio equipment? A. Of the
. entering such area, seven, lines do not have any
7 radié equtpment. CMe
‘ 4): Then, as I understand your teatimony, the. 39 lines,

of which 32 have ‘radio’ equipment on. them, are subject to_
_ a greater traffic hazar s than those not entering the con-
gested business sectio A. Yes, sir. :
Q. In. your. opinion = any comparison of traffic acei-
dents, should weight be given to the facet that. about. 76
|g per cent of the lines which have radio-eqnipped vehicles on
therm enter the congested business area? =
273 line; and S Lines, 16th, Street. It was believed that ,
pel they would cover about every economic strata. and,

represent a cross;se¢tion of the riders at least as best under

the present system of routes. Ser

Based on Capital Transit passenger figures, Thies A, D
and § are about the:same in respect to daily loads. How-
ever, Line L is.about 127 per cent of - any of the three
lines. Thus, Line L was Bi ss 29.7 per cent of the
* planned 2,500 quota of. intery¥ ews, the others being 23.4
per cent of: each, - ‘\ Bree

Q. When you speak of 23.4 that i. a percentage fiouret
A. Yes, and that is’ 29.7. . *.
» Q. 29.7. A., Yes, those/are ‘cearithas figures. So that
we would-apportion our figures according to the peak Ipads.
As for the bus stop inttrviews, again the purpose was to.
obtain the attitudes and reactions of the riding: public to

°

transit radio outside the medium, the best expedient under

the existing time fable-of events, and which was utilized,
was the in}erviewing of persons at bus stops: along the bus.
routes whd¢ré the rad® busses were In operati on. »In this
manner, ¢istoniers who had experienced music as you ride,
~ as. well4 second, . vaatsoniyt
A. We tabulated these results by divisions and on the few.
interviews that the Division Superintendent was there I

made a itote. It happened to be when I was doing the inter-

- viewing myself. s & would like to say-that his presence was
-an impersonal presence, he was wandering 1 in and out and
it was an impersonal presence. , :

_ We were careful to note and see if it did. ;
-Q. How many ‘operators wire intetviewed at the four

-. divisions that you: specifically mentioned? A. At Western,

65 operators ‘out of 250; Southern Division, 57 operators
out of 178; the Brightwood Division, 43 operators out of

101; and the Northern Division, 129 operators out of 378,

or a total of 294 operators: This represents a 16.4 per cent
sampling of the 1,796 capital traisit operators who have
operated’a radio- equipped vehicle, 3 ,

Q. In your opinion, does the percent of operators inter:
viewed at these divisions fairly measure the ratio of ali
operators’ opinions? A. Yes.

Q. Whatewas the result show n by this survey?, 8 95.9
per cent of the operators answered that thew was no inter-
ference with the proper and safe operation. That was in

difect answer to the question, ‘Do you.think that
286 the radio intérferes in anyway with the proper and

‘safe operation of your vehicle?’’ 95.9 of the opera-
tors answered no. .

Mr. Harrison: These,conclusions which you gave stated
on page 7 of Exhibit No. 5? :

~The Witness: They are stated in there, I am not sure of.

'- the page. Yes, it is the last page.

Two per cent were qualified in their answers and two
per cent felt that safety was impaired. 88.1 had no ‘per-
sonal objections to operating radio equipped vehiclés when.
asked the question, ‘‘Do you personally have any objgction.

_to operating a radio-equipped vehicle?’’ Only 3.4 said they

had objections and 8.5 voiced reservations.
| 3@

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ee

-On the question of, ‘‘Do you think radios make your job
‘more pleasant?’’ 74.5 felt it made their job more pleasant -
with the radio; 8.5 said. sometime and 41, L, said they didn’t
know. 1.7 said ‘*No difference,’”’ and 13 said radios did
not make the job more pleasant. o
+ T would like to add h here that one of the things, sort of
“an occupational hazard in the research business is what
we call getting a cheap yes. :
To avoid that on this question we asked them in what

_ way or how. In other words, if they were unable to sub-.
_stantiate their yes, it wouldn’t have “been counted.

By Mr. Awalt:

287 Q. In number of operators, how many is 4 per
cent?’ A. 12 operators, sir, —

Q. When’ you say that two jer tent or six operators’ were
involved, their answers as-to_proper and safe, what do you
mean?

like a little more variety in program, 2.5 said the music

Then we have laslicaias reasons down tere, ‘‘News -_

oS

a

Cross-Examination

. By Mr. Harrison:

«291 Q. I want to ask you one ‘fiirthier question about

this survey. Did you do~any personal observation
yourself on the streetcars or busses as to what you thought |

might be the effect of the broadcasts either on the operators -

or the riders? A. ‘Yes, I was here during the entire week .
of the survey, here instructing our investigators, going out

with them. In fact, everybody, rogerdices of the amount

of their experience, were required to go out and get ten
interviews and bring them back before we gave them any
quotas to see if they were handling it propefly.

In ‘introducing some of our personnel into this work it
was part of my work to ride the vehicles.

Q. Did you netice-any sounds from the radio.that would.
overcome the street signals, automobile horns, policemen’s
whistles? A. No, I did not, sir.

*Q. Did,you observe that it was so lond that it interfered
with conversation between passengers? A. No, sir, and I
might further add that it didn’t i interfere with our question-
ing of passengers. = i :

Q. You did make Some surveys on the vehicles them-
selves? A. Yes. pe 2

Q. Did the persons being interviewed find any .

992 ‘difficulty in hearing your questions or did you find

any difficulty in hearing their answers? A. No, sir.
Q. Did you have to speak in such a loud tone that you
would annoy people sitting in the seat hehind or in front

of the one- being interviewed? A. No, sir.

* ‘* * + . * * * 2.

315 Donald O'Neill was called as a witness and, having
. been first duly sworn, was examined and testified as
follows: {.

4 |
, 77 : :
Direct Examination - : re remren
' By Mr. Dowd: ate : .
5 ee Ses
_ . Q. Would you state your nMbe and address for the

316 record, please? A. Donald O'Neill, 62 Greenwoo

_ Road, Moniciair, New Jersey. rte

¢ Q. What is your occupation, Mr. O'Neill? A. Tam pro- ¢

gram director of the Franchise Division of Mpza& Cor-

poration. ae Teac oh cee
Q. How long have you been associated with Muzak? A.

- ‘Phirteen years, since its inception in New York in 1936. .

-- Q,-What dre your dutiés with Muzak at the present time? -
A. As program director I have supervision over and direct _
responsibility for all of the musical programs distributed >|

-. by Muzak throughout the country. This responsibility in-
volves the selection and grouping of musie for programs to
hotels, restaurants, banks and other offices, to factories and

‘other industrial accounts; for our programs to radio sta-

_ « tions for transit broadcasts. _ It involves programs fur-

~ nished to a number of railroad and steamship companies.

: "My duties also include the conipilation of music libraries

_ used in transit broadcasting and for individual industrial,

office and restaurant subscribers beyond the reach of cur
wire services as well as the additions of new muSic to these

- libraries each moath. | tires

As a member of our music committee, I participate in the
determination of the music and the type of orchestra

- 317 to be used each month for recording new additions

a. to our libraries. . | pes

3 Q. Just what is the principal. business of Muzak? A.

Muzak Corporation consists of three major divisions. -First

is the transcription division which is engaged in the record-

ing and manufacture of transcriptions and phonograph

records for ourselves and for others; second, there is an °

Associated Program Service Division which maintains a

library of transcription music released to. standard radio

stations here and abroad; third, there is the Franchise Di-

vision which is ia the musical programs by wire in

78

: 4 :
Some 70 cities in the United States and its possessions,
Canada and Mexico. This division also deals with the vari-

ous programs and libraries listed in reply to the question c
under duties and responsibilities. a
Q. You referred to a radio broadcast library: ae the 3
Transit Radio. library your regular radio broadeast station 3
‘library? -A.'No sir, it is not,, It is different.from the =~
library the Associated Program Division supplies to stand- — i

?

ard broadcast stations. -
_ * Q. How and why apd what is the library that yu furnish 3
‘for Ttatsit Radio broadcast? A. The library whieh we, |
furnish to Transit broadcast stations is made up of the. |
music drawn from our functional library: It is-music that
is designed for use in work or other types of installa- :
318 tions. It differs from standard radio music in being = * :
considerably less highly arranged | eifd being more
simple than the type of musie which is customarily heard
on st tandard-radio stations.

* Q. What were the primary considgy ations in the creullen
of this Transit Radio library? A. As the oldest and per-
haps the largest source of ‘functional music in the country,

‘it has been natural for us to follow the development of
transit broadcasting with a considerable degree of interest...
From our analysis of music ased in this business we believe

the type of functional music in which we have specialized

is ideal for this purpose. :-We design our library to include
non-distracting music so that all musical tastes are repre-
sented in amounts roughly proportional to the anticipated
likes and dislikes of the projected audience.

Q. What are the chief churacteristies of the musical
selections that are placed in the Trans: Radio library? A.
First and most important, whether the Selection is concert, .
semi-classical or papular, the melody i is emphasized throude- ;
out. All of tke concert and semi-classical music is per-. °
formed by orchestras usually called the ‘‘Salon’’ type, .
made up of approximately 15 ‘to 20 musicians. Violins and
other stringed instruments predominate in these, combina-
tions over woodwinds and brass. The popular ase iA

~

Pees on ele 79
319 is performed by popular dance type combinations
: of wood winds and brasses tempered in many in-—
stances by the aap of a string section. Al] the arrange-
‘ments are generally full with,no solo performances; swing, ~
and jazz‘ are avoided as well a¥ heavy symphonic music.
Brass instruments are muted, Extreme changes of dynamic.
level have been excluded. Throughout simplicity of treat-
ment has been the keynote with enough tonal coloring to
Keep the music from becoming drab and uninteresting.
Q. Mr. O'Neill, were “you present, during the testimony

yesterday? A. Yes, sir. © ©
Q. You heard’some of the refereaces to the music used
by WWDC-FM? A. Yes. 3 ae

. Some of those terms, which I will repeat, were brassy;
jive, bebop, boogie woogie. In any of the music included
in the Transit Radio library sélections of that.type? A,
In the library there are some-selections that might lve termed:
jazzy. These, however, happen to, be on particular dises
and are. not used for program purposes. Otherwise, there ~
is definitely no bebop, there is no jazz. Sick eimeae

Q. Could any of the music be called brassy? A. No,

sir. | ieee | RAG
320 Q. As I understand your previous testimony, the
. brasses are muted for the most part? A. That is right. -
In gther words, brass as an instrument is not emphasized
at any- point. ° Usually they have either mutes in them or
they are kept so much subdued and in the background that
_ frequently they are not perceptible. 3
Q). Yon have no instanves, for example, where Henry
Armstrong would take off on a trumpet solo? A. No, sir.
Those are characteristics which clo not fit in with our con-
cept of functional mus ‘¢. ) San
~ Q. What steps, if any, do you take to make certain that
your quality in this library will ge maintained? A. We
select all our own arrangers and artists td score and per-
form in the manner we want. We recortl. them in our owp
studio, using the best equipment available and in so far as

s#

=

~_*

the program is concerited, we maintain avery ny trained
staff of personnel.
Q. Incidentally, what font 3 iy recordings are thine’ WA.

These: are electrical transcriptions recorded vertically as

against a lateral recording which is characteristic of phono-

moan —_Aa wea

aj.
Stapu 1covv us.

Q. What is the fidelity of your vertical recordings? A.

‘Not being an engineer, I can not give too much of a definite |

answer on that. It ranges, as I understand, from approxi-
‘mately three or four hundred eycles to at least 10,000. .

321 It exceeds by ali-means in the. upper end and lower _

) end the mechanical means of reproducing that fnusie.
Q. Does the average person have musical likes and dis-

likes? - A, Definitely. This has been shown conclusively by

our own research studieg and by the investigations of many
investigators. It may be stated that the average person
has strong likes and dislikes in music. ‘Furthermore, he
will accept as a matter of course the music he likes but will

protest vigorously that which is personally distasteful. It

has been our experience that a favorable comment freely
offered is a rarity compared to the number of unfavorable ~

“comments. Every indication we have reveals better than
‘95 per cent acceptafice of music on the part of our audience.

Q. Do I understand from that that in your experience ,
people who object to something are more apt, to protest —

than those who like it? A. Yes, ‘people who dislike music_

are much more prone to object verbally or in writing than |
those who ‘do not object or who like the musice..

Q. As a part of your research work, has, Muzak Corpora-
tion developed a statistical method for evaluating likes and
dislikes? A. Yes. Every study we have made ‘includes

likes and dist:kes. ‘Those are both carefully tabulated | -
322 and-listed. They enter into the planning of all our’

programs. For purposes of statistical measurement
we have developed a merit index to- express in one figure
the likes and dislikes of our audience. ‘Types of music that:
have a low merit indey rating are éxcluded.

ERS IA OT De eA ee VAN Se AY HF CONE AE, Cae PRL EEE, Sew
« -

: €\o%> f \
at vi ON Ee

-Q. It is on the basis of this Giatiatical analysis that you
‘janie previously that 95 per cent of the audience found

_. your musical libraries acceptable? A. I'would pay that 3 is
true.

Chairman Flanagan: May Lask a cuestion on that point
on- the likes and disiikes?

’ Mr. Dowd: Yes.. ~= + ~

Chairman Flanagan: I wonder if this witness would have

. any explanation for the fact that a large number of people
_ who profess to be music lovers violently object to music of

this type on the ground that it violates their private rights..
Mr.. Dowd: If the witness has an pinion, I shall be glad ~
to have him express it.

_ The Witness: Well, ‘I can’t answer from a lsc stand-
point. I will say this, that the reaction‘ of ‘most people to |
music is based on association. Generally speaking, people east

with a high musical training do.not care too much for the ~
more popular forms of music. By popular I mean dance
music, operetta music,: types of music of that sort.
323 That of cotirse is strietiy an objection that stems
from their. background, from their association with

Sitier types of music. os

Chairman Flanagan: Do you have an extensive musical
background yourself? “s
The Witness: E have, of course, @indied fuanieal theory

“since I have been with Muzak. I have studied piano. I

have dabbled in many phases of the business. I do yot

claim, however, to be a professional musician.

iy Mr. Dowd:

Q). You stated, did you not, that. your library’ uset for
Transit’ broadacsting aid not contain symphonic music® A.
That i is right. ’

. With reference to’ your answer - to the Chairpan, do
Iu ‘derstand then that perhaps people with'a high degree of
musical training, a higher’ percentage of those people would
like symphone | music than would the av erage listeners? | A.
That i is’ oa at - :

ft

}
Seer

82

Q. Yous library does not include symphonic music? ‘:

No, sir.

‘Q. So those sonia who like it aitaht not like the type of 7

/ music in this.library? A. That is right. In relation to the
- business of likes‘and dislikes as it affects Washington, I
might say—and ihis has nothing pariicuiariy. io .do wiih
as symphonic musie as such but the program. in. gen-
324 eral=-that in the actual operation of Transit. broad.

in casting Mr. Strouse and his staff have bent over ech?

wards to keep the music and the program both pleasing and

: ‘soothing. We furnish WWDC-F'M with the same program
that is.now being used in several other cities. At the ex-
press wish of Mr. Strouse, we ar e-indieating those selectiong
in hig program which by aiiy stretch of the imagination
ean{be deemed too loud, too jazzy or -too brassy for the |
specific requirements of the Washington audience. It is
our understanding that these sélections are being eliminated
from the program actually hroadcast here.

Q. Where music is introgficed as a new element in a
surrounding, whether it is industrial, office or factory, how.
long does it generally take before it is accepted by the peo-
ple in those surroundings as a part of the normal condi- | —
tion? A. It takes a per iod of approximately four to eight
weeks before tlfe music becomes part of their working con-
ditions. In other business, that is in our functional pro-.
grams in fac tories and other things, before we make sur- -

_ veys we prefer to w ait approximately three months.

Q). Have you made any survey or liave you ary figures ,
te show an increasing acceptance of musical background
among factories, offices, restaurants and other types of in-

siallationa’ A. I have spme figures re' on the
325 - music or the acceptance of music in offic¢s asg ell as
in factories. - .

Q. Would you give those fi igures, Steaua’ A. In response
to the question ‘Do you like music while you work??? we
received. the following percentage of favorable responses in.
the past four years: In 1945, 77.3; int 1946, 93.2; in 1947,’
94.5; and-in 1948, 95.5, - See

ve : “ ‘s

ee | fs

Q. That is the percentage in offices ‘where you had a
- musical background installation? af That is right. —
Q. Ho about your. industrial plants?’ A. From indus:
| trial plants the same question produced these figures, favor-
able ideas: In 1945, 80.8 per cent; in 1946, 89.2-per cenit; &
in 1947, 95.6 per cent; ‘and in 1948, 94.5 per cent.

Q. Do theas rrures indicate that the longer the music is
-there the greater number of, people accept it apd appreci-
ate it and want it while they work? A. I wofild say those ;

_ figures tend to support that statement. :
@. Now in your installatigns where you have made these
2 studies do you have or have you ever had a 100 per cent
eo acceptance by the people in question? A. To the best of my
knowledge, this has never happened. There is always a
small minority of from 2 to 4 per cent who object to the '
use of music in industry and a number in proportion
326 who are indifferent. So far as we know, there-is no
means of overcoming this small opposition. How-
ever, we derive considerable satisfaction from the fact'that -
the overw helming majority of our audience is highly favor-
able to o sic and also from the knowledge that whether
thoy: seat oP not, the small minority who. object derive
subconsciously the benefits of our functional music.
Q. Have you made. statistical studies upon which you °
have based that conclusion? A. Yes sir, we have studies,
‘as I-stated,; ranging back to early 1945. This is a con- .
tinuing part of our operation. ;
" -Q. Do those studies then: indicate that from thie objective
‘analysis such as efficiency or the release of fatigue of ten-
“| ‘sion, that ‘more people benefit than like the music? A.
‘That is true. There is a general increase in tlie efficiency
a from objective studies. I think the average is approxi-.
matety 12 per cent. There have been cases where it runs
as high as 45 per cent. .

-Q. So that the-benefits of the-music are not always neces-

sarily the same as thé subjective’ likes and dislikes? A.
That is true.

——

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nt
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it!

be
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} ‘ Slap

361 Ben Strouse was called as a fate nn ‘and, having

follows: Y

\

ae Pats

* Dirget Exowks ANE | 3
Rv Mr, Dowd: ; ; Sanbets :
-Q: Will you aaa state your name Yor the record! A.
Ben Strouse. | a:

Q. What is your occupation, Mr. Strouse? A. Vice- ae
president\and general manager of Capital Broadcasting |

Company, 1000 Connecticut Avenue, and T am president of

Washington “Transit Radio, Inc. : R
'Q. Do you know, as president and director of Washing-

ton Transit Radio, whether any of the stockholders of

Washington Transit Radio are officers or. employees of

| Capital Transit Company? .A: They are not.:

** Q. What is the relation between Washington, Transit
Radio and Capital Transit Company with respect to the in-

stallation of radio receiving’ equipment? © “A. Washington

. Transit Radio. Ine. las % contract with Capital Transit

Company for the installation and ‘maintenance of FM re-

ceivers in street cars and buses. of Capital Tr: ansit Com-

been first duly syorh, \ was examined and testified -as

. * *
4 ‘ e cS
°
: b
. k ? Ag
§ . *s *
e eh.
. . :

pany.and also has a contract with a radio station whieh in __

tur enables them to provide for a satisfactory program
service for reception in such. vehicles. ~

FM.)

it necessary that. WWDC-FM furnish these pro-
363 grams? A. No, there is hot. Arrangements could
be ‘made with any other radio station. |
QQ. To furnish similar” type. programs?

i

§)

man of that committee ind Colonel Stanford, who is: com-

. munications offieer, They were very much interested in
transit radio, interested in all types of mobile radio, one-
- ¥ way and two-way. They asked me for a complete
- 898. Gist of citiés where transit radio operated.

*- They:told me of use for which transit radio could
be. used in emetgeney which. we had never realized our-
selves, sir. Some of those uses are services: ‘that can, be
used in broadeast servicing. ‘

_ For example, Colonel Stanford brought out ‘nak news

casts during times of extreme emég¢gency could be used to:

control panics and for ‘‘Panie-control,” which i is the phase
he used. There are also many other uses, :

Drivers'could be asked to deposit citizens at certain*parts

of the ay -for ambulance duty. The drivers arid the public

: }
r ’
e Siig y
; 3 :
Ps . °
_ ' aehie ‘ . :

—-

“SF oe

| meg }
could be informed to leave certain.areds of the city. In all,
they ga@e me 7 possible emergency uses that as I sily, we

had never realized ourselves. ae , : ae

« \ _*

~ * « * . Sis * eg a * °

299 Frank F. McIntosh was ‘eer as a Witness and

2

having been first duly sworn was examined and testi- .

; fied ag ee

pee 0 Bees
” Direct Examination aor. “ oe

.%e By Mr. Dowd:+ o.

Q. Will you state your full name for the record, sions?
A. Frank F. McIntosh, Consulting-Engineer, with Gliiocs at

710 - 14th Street, Northwest, Washington, D. C..

Q. When you say you are a consulting engineer, what
type $f consylting bey pall is that? A. I haridle matters:
of acoustics in connedti

Q. Mr. McIntosh, what is your educational background?
A. lama graduate oElectrical Engineering of the Uni- :
versity of Nebraska. I havea Masters Degree from M.T.T.

in Cambridge.
400 Q. How long have’ you heen engage¢ in. acousti¢éal
radio and electronic engineering matters? A. I have
. been associated asa member of the technical staff of the

¢ Bell Telephone Laboratories for eight years at which time
‘I was in the developmental group, research roup, and the Pa

‘installation groups. The: v.ork I engage fh there was the

electronic élesign, acoustic material legiga for Studios,

acoustie Maer enents instalkatior of radio and al itis

stations, aircraft s take ahd the like: 3
Q. Were you ev jloyed in the government? A. .:

"was eniployed duriig the war as Director of the Radio and ~

Radar Divi igion, Foreign and Domestic-Branch, which han-
dled, of .course as you kndsy, all the eiectronies for the
Anny. Navy and civil&in uses. That period lasted until -
1944 when I left to form my own business. Between the time —

> I worked for Bell ‘d Aboratories and thé time I went to the

W ar Production Board, I was the sales engineer for the 12
% . A CE

ty 7 oa

ion with radio and television. of

‘

4S

a)

oS

3 een

os 1 2 ,@ * 7 s*f
eno & cs rE weno

.

Coons ho Pea Ds
to establish the general characteristics of the ear and they

have been published thrdughout the. literature of the .

eountry.. ° .
Dr. Fletcher of Bell Laboratories is one of Phe leaders

w ho hav e published books on speech and hearing and those oe

_@e-~ bie OE eee hb WRG awed oo ome 5 SN 2] Sheet Sen Fon vevy +3
sve t a Wits iin fave OU itvivpwreu to tat JILLUt baked vaeraie

Q. May I interrupt there?’ When vou say that the ear.

does not he ar logarithmetieally, what would be the situation
if you had a given volume of sound, for instance,

404 ga piano and you.were to double the number of pianos, .
what increase in. the sound level would there be as

measured in decibels? A. If you assume a double ee

energy level, you would have a dhree db increase in db
“Mr. ‘Polak: A what?

- The Witness: If the power level was doubled the db if- -

crease W ould be.three db. 9

By Mr, Dow d:

©

°°

(). In other words, if you had a sound level of 50 decibels,

you would have to, add another sound of 30 decibeis in
‘ volume in order to Increase the total volume to 50 decibels?

A.. You would hav e to have the sagge wattage component

as the or iginal sound to increase tlié db. ' |

Mr. Pollak: Would you repeat that, please? ’ rtp
a The Witness: In order that the seund level was ineréased
3 db, the.power in, the sound would have to be doubled. In
other words, aéing from 50 db to 58 db, requires that twice
the energy or twice the power. is contributed to the sound
waves. That is a very fortunate thing. If it was not for
that, we would all be going crazy everytime somebody
tooted their horn or hit a bell or slapped a book down on
the table. Those peak energies may be many, many times
greater for a very short instance. * ;

405 ‘By Mr. Dowd: sor atl ee /

Q. W hen I interrupted, Mr. Melatosh, you had /ex-
plained that the first twe columns represented the hoise

&

Tuy

2,

- radio going. °

91

devel with the car in motion. Now the third column yepre-
sents the noise level with the ear standing stifl with the,

radio on? A, The third column’ is. the car in motion with
_ the carnoise and with the radio on.

.Q. I mean the rats column to the right. A. wee last
eolumn fa the. rioht ic tha etrastear ot

ee ee >
> ; - a

ae
--

as
aavu

QI notice that in the first two columns there is very little

, differehce between the noise level at any given position in

the vehicle exept for 5239. Was 9239 a bus? A, 5239 is
“a bus.

Q. Then 1511, 1558 and 1127 were streetcars? A, Yes.

Q. In these vehicles the noise level when the ear was in
‘motion was the same: measured 1 in decibels in ali positions?
A. Yps, sir; pretty much, sir.

Q. In the bus, when the bus was in motion the rear of the
bus w . much noiser than the front and middle of the bus?

. That was due toe'the fact that the motors are
406 palarh at the rear of the bus and the average inten-
“sity measured higher there. St

Q. In the last column to the right I notice that in each
case the noise level as meagured in decibels is less at-the
front of the car-than in the middle and. rear of the ear. A.

a Well, in. all eases that we checked we found that the actual

noise ievel was slightly less right behind the driver than-
in the other positions of the ear. ine

Q. In those cases the radio Was ‘on? A. Whether ‘the
Kedio was on or not; it seemed slightly less there.

. Q. Bat.when the ear was in motion the sound level
throughout the car was the eartie, méasured in decibels, znd
[ also notice that that is true” whether the radio was on or
not? A. Yes, because the actual energy contributed by the

yadio was so staal that it was not passible on an averaging |

_ meter to measyre the difference.’ It is just that small. The
reason you can hear these things is not necessarily a matter
‘of straight energy. ‘It is a matter of where your mind
works.- Yon can differentiate between sounds or you _gew,
used to-a sound and put it out of your mind. gS

Ww

*B

°

% 3 ; $ ‘ A ,
For example, like the rpmble of a streetcar roingout

side your house. Some people cannot sleep the first
407. night visiting someone where streetears go by but
} , after a while*your mental processes are such that you
exclude those sounds so that they don’t disturb you exces-
sively... ES , ty ,

In listening to things you hear fhe things you want to
hear. Everybody has experienced the business of people
talking to them and having them turn right around and ask
you what you said. Any.new sound you have you are going
to hear for a while.

- Q. Upon the basis of measurements that you made and —

ror experience in this field, would. you say that the radio

when the car is in motion, with the radio in operation, that
the radio 1y any way prevents anyone from hearing any-
thing that he would otherwise hear; that is, if the radio

were off? A: No, sir; I don’t believe that it is possible to

- provide enopgh energy through a radio sound system that

yen could economically put in a ear to mask out other
sounds. att Soy aaee :

Q. Assuming that the car noise without the ri@o is 54
decibels, what power would be needed, how loud would the
“radio have to be, before you would override the car noise?

A. Well, the power -increase, the sound energy increase, -

assuming that the radio at the time of competition was giv-
ing the samé amount of energy out as the noise, im other

words, there was a 3 db increase in the sound level as ae

result & the radio which was not the case tm these

405 measurements, but for the purpose of getting abase-

from which to make a computation, we bave to as-
sume something that: might be logical. | You would have

to inerease the habe std times in order to completely

mask or do what a maSking job of 30 db, which is ednsid-

“ ered a minimuni ratio for masking. ’

Q. Do I understand from that then, that in order for one

* Sound to mask or override completely another sound, it
- must be 30 decibels above the other? A. 30 db is the as-

-

sc
.
.

sumed ratio for masking. In other words, the first sound
thene becomes a very minor one and the one to which you
are listening is the controlling ome.

(: Now in view of the fact that the measured sounds or

the measured volume of sound in decibels is the same

whathor the radio } is on and uw ithont tha radia an haw da
% a. see ete enw re lie all

aaw wasg

’ you explain that you can hear the radio? A. As I said be-

fore, the ability of your mind to pick out what you want to.

. listen to and differentiate against sounds, is one of the

- faculties that we are provided with. +
Q. And if a new sound sueh as ‘adfo is introduced into
your normal streetear noises, would that sound become
» more noticeable than the n@ises to which the ear is accus-
‘tomed? “A, Yes, sir, any new sound attracts your atten-
tion until it too oceupies that place in your head that-all the
(). Is it also correct to conclude from yout exhibit
409 ‘that the increase in the sound from an average of
anywhere from 44 to 64 decibels, depending on which

“one you were measurifg and when, that the inevease be-
4exx een tha rate at tha noise layval with the ear stundiz ng eatill

oF 45 ate , Se we ws “ at as. aw aA AENAL am ueas

sed the ear in, motion is due to seme factor other u an the
radio? A. Yes, sit. . ‘
Mr.,Dowd: That is*all on direct.
. Cross Examination , :
“By Mr. Harrison:

connection with % Tash
? A. Lama member ‘of the Board
of Direct@s, a stockholder and chief engineer of this ‘Com-

pany as wellas WWDC. ,

Q. What are your duties as_chief, engineer of the Wash-
ingjon Transit Radio? A. My responsibilities as, chief

engineer of the Washington Transit Radio include respon-

—sibility for developmental and experimental work which in-

A

cluded the installatiow of the first two. receivers here inf ~*
Washington in March of 1948 at which time we were -deter-—

mining the requirements of such a system for installation
in mobile equipment and of course. the feasibility and pub-
lic acceptance of such a system. -

“» I also serve fsa member of the Engineering > Ads
AAA than Kl atsann)

Ze. yest stn 4a 4
i ae ae visory Committee bY tHe ivavionas COM Panny Transit
Ys

Radio, Ine., with headquarters at Cincinnati and my
more direct responsibility at the gure tine responsibility
fer the installation and maintenance of tlie tece: vers install-.
ed ‘in Capital Transit eepeey vehicles here. in Wa sh-

ington, r) ; 33 :
Q. What equipment is used in the bus. and streetcar in- °

stallations here in W ashington? A. The major egmpy-
nents of the equipment is. an antenna, a receiver” and six
‘speakers withothe associated, wiring. ‘

Q. Why are. six speakers used? ~ A. The choice of six

speakers was* not just a chanee selection. That was the =

result of some of the experimental work that was done over
a, year ago. At one’ time we considered the use of one
speaketyand we gave up the idea of the single one due fo

the-fact that always in a case of that kind the sound level ’

at the point of*origin is much higher than several feet aWay.
In order to get a uniform distribudion of sound through-
out the vehicle or through the latter’ two-thirds or three-

Pp

-

a ;
ae aoe “ ‘ 06 ie Oe 3
“ \ :

quarters of the vehicle we chose six speakers as equally
well\ spaced as construction details:cef the vehicle would '
permit. We more or less deliberately though ‘neglected th
distribute the sound as well in the front of thevehicle as — -
we did in the latter two- thirds or rear of the vehicle for’
. the reason that we didn’ t wish “to have the sownd
445.:- level ‘as high at the operators. point, where he sits,
as it would be at the back of the bus or the latter :
- three- quarters of the bus or’stveetear as the case may be, ~ ee
Q. Were you present at the time we had the testimony
as to the measurements made and the introduction, in evi-
' dence by Mr. Mctutosh of those measurements? ‘A. I was.
; QQ. Those qheasurements bear your findings out, as to the
distribution of sound level insofar as the radio is: concerned
as regards the front, middle and:rear of the bus? A. Yes, |
the acoustical measurements as made by Myf. MeIntosh and |
as listed on his exhibit there will show That there is from _ a.
four to six decibals differential between. the sound level be- 3°,
ginning about ,ten or twelve feet, back in the bus to the. 4
rear as compared to. the operator’s portion. :

Q. Phat can ohly be determined when the bus is standing
still, however. A. Yes; J believe that is Soxteck. As'I
remember the’ measurements when we were making these .
: -measuremnts the sound lev ‘J greate!l by’ the street noises, a
and created lty the vehiete itself exceeded and.was by far
th dominant sound in the vehicle. -
+ Under those conditions, of cqurse, then the sound at the re
operktor’s position, would be Breatér(than the lower radio |
sound wifich in fhat | case auld then more or less .
446 blank out the radio. - Seas :
, . How is the volume level whichis how being,
_used. determinéd ?. A. That was also done expe Huertally,
over a,year ago. We first henl a committee whieh made |
more or less the selection of the volume level. That com-__
mittée wag couiposed of’ members of the Capital Transit
Company staff and also of the WWDC staff. ~
Q. Who headed up the staff of the Capital ‘Transit Com
pany?’ .A. As I recall Mr. Giddings was there and Mr.

ws

°

VS

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e. —~. ia a

eva who is an “engineer in. the machanical division ‘of
‘the Capital Transit. Company. Pe They ;
Q. They participated in these tests chet: you determine
the sound level to be used? A. Yes. Of cotirse there was ia
‘iso the oper afor of the vehide that: was ‘there. | .
That was only the first iest. We took # bus vecause ‘at
that time that was. the only vehicle-that we were installing -
receivers in. ‘Tat was in February, in fact, it was on F eb-
_ ruary 10 or 9 of this year, 1949. We had a bus that we.
“. -dreve over various terrain or various street? which. ve
° theaght would be representative of- the streets in Wash- _
. jrigton and at vatious speeds. We “etermined from that, =.
) - we increased the level of the volume and decreased it
447 until we finally found a point.that we felt was the’
bee best compromise. After making: this determination
| and all agreeing that it was probably the best sound levél,
- set was removed fr om the vehicle and put-back on the
Pipe test beheh at whieh time the voltages that were set up. by
' .=-gound reproduction frem the recei iver were: measured. Ms
We took that then and used that more or ss as a/
4 dard, Since then, however, we have continued to ex- ~~%
77 ~periment and we have found to a large extent that we’have: , 4
| readjusted this level downward, not a great deal but some, :
iz fer more. comfortable or we, feel, more ecomfertable lis-
tening level andestill we are able to have a reasonable de-
| + Sree of intelligibility both in musie and speech. ‘
ae," 2 Now you nse this volume that you’ determined on the
“Dench as your base volume level 2nd then I understand that
° you make adjustments as the installations go im? - A..Let_

w

\

| me go a li-tle further on tfat.. We have measured imou-
merable receivers; that is,.after our men have gotten on
' - - treetears and busses and they have asked qperators, they
have asked passe ngers, whether or not thoy felt that the
volume level was approximately right, and if fhey felt it
{ © was too high, they would retadjust it.and ask them, ‘‘ Now,

do you think it is all. right?’ And’ more or less let the
passengers or operators tell them | when | they think the level

og appromumately right. a

a ie

. 8 gs
448 Then we would, take those sets out apd measuré
them, The thing is that we have averaged the meas-
firements of, oh, I would suppose 100 receivers to come |
out with the standard level that we have now. a
3 My Novy after getting this. standard level. we + ie all re-
\eeek” When to APSWEF your “ueation. : minor eartationa, .
that is, we make minor adjustments on the vehicle when Ea
. « « the receiver is installed to. compensate fay any noise condi-
tivtis that might te existent on, a. particular vehicle.
As shown im Mr. McIntosh’ s exhibit-some vehicles, are.
\ noisier tlian others and” necessarily if' that is trac: eS are, ’
‘9 must be a slight variation in n the-stagdard sound level that
we have established. :
On the other han) there are some that are‘ quieter than
. others and we adjust those down ward, .
Q. When you set, the- volume and imade these adjusting#fis
« does that volume remain?» Is there” any variation in the

operation of the set after that is once done? -A, Of the re-*
ye gelvers that we. have removed fram service and hava ya

4 ALCHYTU aur

paired them due to'some minor fault one way or the other,
.wé have measured these sound levels and L don’t believe
“sin any case haye we ever found ‘that the sound level has
“ever varied except under conditions which would cause it
‘suchas niechanical failures or tampering. We have
449 ~hasl some eases of tampering and we havé had, as in
* any equipment, mechanical, or electrical, you have
some failures. , ; ° ie
‘(). Well mow, what 1s the greatest period of mechanical
failures; that is, when they are first installed or after they
have been in or when? A. Always, in any new equip-
ment, new installation, you have more or less a shake-down
eruise. Any equipment that is installed is more likely to
fail during the first few hours or possibly few days of oper- +
vatiogthat it is apt to do after you lave gotten to the. -
point where in the trade we call it ‘‘got the bugs out.’’
Q. Is it your testimony that-once this shake-down eruise’

°

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IS:

ra

Lede) alt

ures which might.ca

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EE Ns ee 2D yp PEE GLE eee Gero”

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.

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has been carepleted op each + net — that the mechanical fail-
se, variations ar sets to Operate im-

properly becomes forsiderably less?’ A. Oh yes. In fact,-

owe feel that many of ‘the complaints that have been re-

ceived by the Commission*and ourselves an Capital Tran-_
“ ait Camyany have hoen ao 8 result af th 1eaka an-ealled shaké-

sit Company hat nese Ose 8h
down verlods, ore : i

Therdis no way yeu can i gvoid it. “You can’t anticipate
what-it will be. - We do ewer ything in the avorld we can to.’
prevent these failures but in-case of a failure the set. may
go completely dead or im some cases the level of the set
may rise a few decibels. — .

ai ~ Q. T reeall early’ in the testimony that Mr. Sager
450 testified. that in July he rode a vehife whicle he
‘thought was too loud. -Were you making any instal-

_ @#

9?

Eanes in July and August? A. The m&jor ‘portion of the

installatiogis wag made in July and August. ”
Q. Of the 200-Som Add sets? A. Yes. “We ran 21 or 22.

vehicles’ for a perioll of peveral months for test and then

just about fuly 1,

2
ia
~~

beginning

on more or less
mass installations. — me Be :

Q. Mr. Beville, do you have— any system of Maintenance
checks olmthese receivers ‘once they are installed? - A." We
have a most elaborate test and check system. We are able
°to check every radio-equipped vehicle in tle Transit Com-
pany system at least once a week and usually—not tsually
but sometimes two, tlfree or four times a week.

.Q. You have men on the street engaged in that? A. Yes.

Q. What provisions are made in handling mechanical.

failures which occur between these maintenance checks?

A. The Transit Company, operators report. those to the
- Transit Cérmpany witieh in turn report to us.

Q. How do you handle cases of complaints that ares
turned in between your periods of maintenance checks, be--
‘ tween these periodic checks? ‘A. For example, if the
451 complaint is one of the nature that, say for example,
| if we received a complaint that the set is a little too.

° 7 :
° «

yi

2

>
> ? : : ; $
‘s
: ‘ a7 .
; 100 3 :
4 ;
a6 . °

loud, in most. cases, . if the set is too loud, you would find ,

that the operator or inspector had turned it off if it was

actually eausing annoyance.
On the other hand, there are degrees of loudness. ifa
set may be just slightly loud ‘in the opinion of the operator

but not serious enought to ‘turn otf, he may report that and’

we may haye & man there. Well, after we receive, the re-

port of the difficulty we will have the nian on the yok: or.

dispatched to the jeb within 15 or‘20 minutes.
Q. You say there is a method of-turning off the sets

though i in. the event the operator feels that they are eperat- .

ing too loud to permit safe operation of the’vehicle? A.
- There is an emergency switch provided for that purpose.

. Doyou handle or inv estigate complaints that are re-:

ceived from any other source than Capital Transit Com-
pany? A. Yes,,those complaints are reports that we re-

ceive from people other than those .working for Capital

Transit Company and WWDC which are just as valuable as
if we had. employed someone to tell us that the set is not
operating properly. © We iestigate any specific com-
pfaint that gives us-enough information to track down the
vehicle, we investigate as quickly as we can. .
452. Q.° Mr. Beville, is thert any difference in the medj-

an sound level, measurable sound level, between the =

radio sets when they- are operating ye voice and music?

A. The measurable difference acoustically ‘is hardly dis- .

‘eernable. You apparently are reférring to the notion, er

rather there is information to the effeet that we raise the ,

voice levels on commercials higher than we do on any other

program material. It is hard to answer this question defi-

nitely one way or the other’due to the fact that a voice the
average person the average power contained ini voiée mod-
ulation is much less than the average power contained in
musie which has a more sustained or sustaining type of
material than the voice would have and, therefore, the av-
erage power of the voice is much less. .

It is a known fact that noise affects more adversely
speech than‘it does'music and that being the case you must

a

e

!

a

| aes haniee

raise to some extent the voice under.given noise conditions _

_to' make speeches intelligible as misic, you must raise it.

-. slightly... However, that is only electrically within the re-

ceiver. Mees
Measnrably, acoustically, you can 7 tell the difference.
Q. May I ask thef?e whether the measurements that were

made—were you present at the time the measurements

“were made by Mr. McIntosh, which he introduced? » As

. -Yes. * ’
453 ~ Q. Tid those measurements indnile measurements

. vhile As ear was having beth speech and music? |
A. Yes, f measurements were made over a period of

hours. The measurements were made under the super-
vision and direction of Mr. McIntosh and some py him en-

tjrely. I was present there and the average readings w eFe °

as was listed there ip the testimony. That continued, for
example, one of the measurements that was, made, I believe
the streetear was boarded at the corner ‘of 17th and K
Streets. and measurements were, made. continually all the

WW ay from > T sir eot te tha end of the Mt. Pleasant line.

.4u"ClUM —_

Thag being’ the case ¥ou-were able to ceme up with’ an
average and of course there were ‘many Voice annoynce-
ments as well as music during that period,, We were un-
able to find that there was any difference, measureable dif-
ference acoustically, in the yoice and the music.

That is the reafon, for example, that you must change
the gain of a receiver slightly. It isa compensatirig deviee
is what-it, is. A compensating device is something that
makes up for: deficiencies:i in the original circuits oF oyiginal
system and there are defigiéneies in the system when it
_comes to speech ‘and, therefore, you have-a compensating
device whieh simply raises the speech level:to the same
point as the music level and makes it equally intelligible.

. ieee * . ee * * ‘ . *

2 a ; : :
. * : Py d :

0

*

Capital Transit Cotpany Exhibit No. 1.
Say re AGREEMENT — 2

‘

s oy

a agreement made this 13th day of Hoosen: 3 948,

and between Capital Transit -Company, hereinafter

Ssisathains referréd to-as Canital, and Washington Transit
Radio, Inc., hereinafter sometimes referred to as Ratio,

WITNES SSETH:

Wheres, (: apital operates certain street cars and busses
within the Washington metropolitan areg@ind, as a part of
sh service to its, patréns, desires to make available to them

niusie, news and:other entertainment and to secure revenue
irom advertising ; and

Whereas, and for this purpose, Radio is desirous’ of im-
stalling and ihaintaining the equipment necessary to,re-
ceive audio corimunications by glectronie means in the
street cars and busses, owned and/or operated by Capital;

Now, Therefore, in consideration of the muttal covenants
herein contained, it is agreed :’

) : By eee Short
= ; ee
DEFINITIONS

s

» Wherever used rerein, the followng terms shall he’

deemed to have the f

wing meanings : en a

(1) Audio. «The terin ‘“andio”’ shall mean a system
of broadcasting sound messages unaccompanied by
visual messages.

(2) Television: ‘The term “television”, or “visual”?

shall mean visual messages. ioe ann by. sound mes-
sages related thereto.

(3). Right of first refusal. “Right of- first refusal’
. shall mean Radio’s right to méet a bona fide written ~

‘offer made by another to Capital, It must be exer-
cised within thirty (30) days of written notice thereof
from Capital to Radio. .— -

(4) Notice. Wherever ‘notice? > is required in this.

Agreement, it shall be made in w riting and transmitted
via registered mail to Capital at its main office, 36th

-

a ae

ee nl

° * a)

(103 —C«;w F

and M Streets, N. W., Washington ‘7, D. C., and to -
Radio at 1000 Conuecticut Avenue, N. W., Washington,
D. C., unless either party by written notice to the other
specifies a different place. eas a

(5) Receivers. ‘‘Receivers’’ shall mean FM radio .
broadeast. receivers and their neeessary auxiliary
equipment including loudspeakers, designed for satts-
factory service in mobile @quipment, suchas is oper-
—~ ated by Capital. : . ee

. %

(6) Broadcast °stution. ‘*Broadeast station’’ shall
mean a radio broadeasting station whose programs are
received over the equipment installed by Radio im
Capital’s facilities for thos@hours of operation during
which programs aré so.receiveg, a

(7) Capital’s facilities, ‘Capital’s facilitic@®’’.shall’
include street cars, busses, terminal facilities, waiting:

rooms and division headquarters owped* and/or op- -

erated by Capital within the Washingten metropolitan
district. toy de gtatt Wak vr?, ics ° Whe
- (8) Annual’ gross transit imcome. ‘* Annual “gross
s collected by Broadcast Station during each twelve(12)
month period for the periods of ttme during which
_ programs were received over the equipment installed
3 in Capital’s facilities, after any usual’and customary

sales and agency commissions paid, which: shall, in no, .

event, exeeed thirty per cent (30%) of the cost to the
purchasers of time. A radio~installation shall be

transit income”’ shall mean the total broadeast revénue °* ,

9
=

?

*

we

‘deemed to exist whenever equipment has been installed ~~

by Radia in a vehicle Which is in. segniar use, ,or other
faeility-of Capital; the installation shall be deemed ta -
have occurred in any month during which’ actual in- .
stallation was completed prior to the fifteenth (Ioth) |
daythereof. .: . a :
: es rice aap eh ee) ad wae
H. nee ome :
e ESM“ be Hs ga : ; : M
RADIO’S EXCLUSIVE RIGHT ‘TO INSTALL AUDIO
ea RECEIVING EQUIPMENT. , |

Radio shall have the exclusive rig&t to install, maintain

and use equipmert designed to receive audio communica-

tions by electronic -means, including any and all equipment.
required:in connection therewith; in@apital ’s facilities and

; e@ ,
Pain
8 pes > 2 e

>

9

‘ ps 104°
1 Ss

to provide for the reception of programs over such equip-
ment duting theerm of this Agreement. This, shall not

restrict Capital’s right to install radio equipment far the
purpose of transmitting orders and information to its em-
ployees, or for any other purpose not reasonably Ww ithin the
scope of this Agreement. rT a 2

r e 5 : Gt

: Ill .

INST ALLATION, MAINTENANCE AND D OPERATION
| OF EQUIPMENT:

Alk receivers shall be acqdired, installed, repatted and
maintained by Radio ‘at its own expense. at

é

* « it a * * * a a *

(3) Real alice Fachection of. Nostoment,: Radio shall

make periodic inspections of and maintain. all.the radio ~

equipment installed-by it-in gooil operating condition,’ re-”
placing all broken -or defective equipment. Radio shall

‘have no obligation to make any repairs. of its Sah ponent

which becomes defective between regular inspections unless

Capital shall have notified it that any such eal is out

of order.

(4) Manner and Time “for Mamtenance -and Repairs.
Radio shall de all work of installation, maintenance, ad-""
justing, replacing and removal of. radio equipment in such |
a manner and at sach times as awilk not interfere with the
regularly scheduled operation of the vetticles, provided that
Radio shall. not be deemed-to have breached its undertaking °
with respect to installation, maintenance or repairs if it has’.
‘been unable to gain acess to the vehicles in question for’
adequate periods of tinfe. Capital shal, at. its own eX-

pense,. provide competent personnel to advise Radio with! ©. |

respect to installations; insofar as the -installations, re- -
quire modification or alter ‘ation Sf Capitaltequipmeat. The
placemént of equipment shall he a matter of mutual agree-
ment, it being understood, howeve?, that neitherparty shall
ounreasonably withhold consent. Radio shall pay to-Capital-
gts eost of Fe pairing auy damage done to its facilities in-

te ae

_ |

Ie NMA!

a

a

ll a |

ET RP UE bes a AP ae, ee
. . a

BNE TPE SRE SES PSE EAR TEE TE ig Se EW EME ED SCAU ON SMR ORE TS PRA AE TARDE ORE RAO ir ONE
N . : nenkia :

s

?

eae a

connection with the installation, maintenance and repair

. Work prempfly- upon rendition of bills for the same. When-

ever, any radio equipment is permanently femoved. from
ary facility, Kadio will pay to Capital its cost of restoring
any part tlereof affected by such removal to a condition
eqfial-to that of the regyainder of the facility at the time
of such removal, promptly upon rendition of bikls for the
same. . -' - \ /
| : ee ter
#0 *«. *- es. + * * * soe

(6) Netice Concerning. Repairs. Capitalgshall notify

Radio promptly wheney er any radio equipment is out of .

order. M

(7) Control of Receiving Kouchacat Radio shall have

full control over the time or times of day that its radio
“equipment shall he operated, and Capital shall net. turn off
or disconnect the radio receiving s¥ster? in any , vehicles
while it is operating ona regularly scheduled: route, except

when in the opinion of ‘the operator of any such vebiclé the

racdio- equipment is nh ot operat ne } property she OF, the + nat ur 2

of the material being broadcast will jectardize the epera- ;

tion of the vehicle gccording to normal-standards of safety,
a) rexcept when suck vehicle is involved in an accident, and
manual swit¢hés will be provided’ therefor. In all other

’ instances, segs shall be earned on and off by Radio by elee-
trohic’or other automaNa méans. It is expressly under-

stood that the provisions of this-paragraph shall not apply
to equipment in vehicles’ operating under charter, which

equipment ‘may be turned on or off in’ the diseretion of

Capital.

meee 84 le ahaa
BROADCAST SERVICE TO BE RENDERED* |
‘In order to comply with its obligations hereunder, Radio
will contract with a broadcast station for programs to be
received j in Capitals facilities for a minimum of eight (8)
hours per day except Sundays. «Radio warrants, and as ¢

comlition precedent hereto agrees, that no contract ‘shall

%

oe

0

106

A . ry

be entered into by Radio with any Broadcast Station for
pregrams which ore not include the followi ing provisions
§

and warranties : “+

| (a) Promrais content: shall be of good quality and
@ consonant with a high standard of public acceptance

and’ responsibility, it keing understood that ‘all ‘pro-

grams shall be carefully planned, edited and prodyeed
in- accordance with accepted practices employed by
qualified broadeasting stations. —

" . i ee
. (b) Commercial announcements shall not exceed.

sixty, (60) seconds in duration; and cumulatively shall

, hot exceed six (6) minutes in any sixty (60) minute

/ period.

‘(c) Broadeast Station shall agreeéto cancel or suita:

bly to modify any commercial continuity upon notice -

from Capital that’said continuity, or the sponsor there-
of, is obje ctionable. Broadcast Station shall further
agree that it shall give notice to Capital Within twenty-
four | (24) hours after, the acceptance of each new
- Sponsgr.

(d) Capital is ‘to receive without charge fifty per

cent (50%) of. the upsold time available for ecommer-

cial continuity as provided in sub-section (b) hereof,
(said free time not to exceed three (3) minutes in any

sixty (60) minute period), for. institutional and pro-.

. . '
. motional announcemenis.. Ali sach announcements
shall be subject to approyal by Broadeast Station and
all such time .is subject to sale without notice. :

© & .

(ce) Broadeast Station shall agree to.indemnify and
hold Capital harmless from any and. all damages and
claims for damages arising out of material broadcast
by Broadcast Station. Capital‘agrees to notify Radio

and Broadeast , Station unmediately. whenever such |

_ claims. for damages are made and Broadcast Station
shall have the right to defend or compromise i any suit,

claim or controversy. : : aa

to Ng pap Drs

: 107

(f} Broadcast Station shall submit within sixty (60) _
~ days of the close of each tw&lve (12) month period as
hereinafter described an audit of its annual gress tran-
sit income as hereinbefore defined, prepared by a cer-
tifiéd publie accountant, and upon request by Radio or
Capital, stall furttiwith make uvauabie for inspection
all its books of account and underlying data, specifi-
eally including cancelled checks and bank statements. —

| (¢g) Broadeast Station shall -be authorized to oper-
| ate as a Class B (eMtropolitan) or © (Rural) FM

station, or their equivalents, assigned to the City of
merhinaton, D. C.

N

ey , ; |
COMPENSATION — | ~ ¢

_ (2) After Initral Period. From and after the expiration
of the initial ninety (90) day period provided for in Part
ill, Section (1) herein, compensation from Radio to Capital
for each twelve month period thereafter shall‘ be at the
rate of Six Dollars ($6.00) per month per radio installation,
or on the following basis, if total compensation there-
under is higher:

Where Gross Transat Income
for the 12-month Peried is ; ;
between: Payment Due Shall —

~ @ and $100,000 10% =...
$100,000.01 and $200,000 + $ 10,000 plus 209% of the
ae: Rte am’t above "$100,000.01
$200,000.01 and $400,000- #$ 30,000: plus 33% of the

7

| Se ; ~ amt akove $200,000.01
$400,000.01 and $500,000 $ 96,000 plus 35% of the —
| Pee tart am’t above $400,000.01
$500,000.01 and $600,000 $131,000 plus 45% of the
am’t above $506,000-01
more than $600,000.01 $176,000 plus 50% of the °

am’t above $600,000.01

- 3 ; ; 108 ;

(3) Interim Payments. ly order to keep payments from
re to Capital reasonably curi rent, monthly eash pay-
ments are to be made as follows: At the: end of each month,
Capital shall, give Radio a written report of the namber of
radio installations in regular use during that month. With-
im ten (10) days thereafter, Radio shiapp pay Capitaresix
Dollars ($6.00) for each such radio installation. After the
end of each three (3) month period, Radio shall submit to
Capital an audit which will include gresg transit income for
the preceding quarter, and a cash adjustment between the
parties will be made by using a projected gross ‘annual
transit income determined by assuming that the said in-
come for the balance of the. twelve (12) month period w ifl
Aye at the‘same rate as actualiy occur red over the preceding
three (3), six (6), or nine (9) month period, as the case
may be. Said projected sum shall be divided by twelve
(12) and multiplied By three (3), to determine the quar-
terly payment dhe in accordance with the schedule of
charges provided for hereinabove. In. making payments
at the end of each such period, due allowance siall be
made for previous payments during the preceding portion .
of each twelve (12) mouth period.’

(4) Annugd Payments. Within seventy-five (75) days
following thé end of each twelve (12) month period, a_final
accounting shall be made, followed by adjustments in cash.
paynyent from Radic to Capital or Capital to Radfo, as the
ease may be, based upon the actual gross tminsit income
for the period. Upon request of € ‘apital, Radio shall make
available for inspectiop all its books of account and under-
lying data, including caftelled checks and bank statements...

a * * * “ © ., * * *
: . ® ‘

¢e Cs
e

RE RE PAIL ES EE EME EE ESET

Dee ee, Veh

ees S|
TERMINATION, CANCELLATION AND RENEWAL

* * oe * i * * .

(4) U halowarabis Public Reuckon or Adverse Operating

S- oF Tn 2ha vant an . enedlaw thia Ag Ay
t v wpe Yee ions UZIAR e UaaeeD ae Bercus ¢

‘esult in unfav orahje public reaction or adverse operating

_ conditions harmful to Capital, Capital shall notify Radio in

writing to this effect. Within ten (1Q) days after such
‘ _~ : "

notice, Capital and Radio shall make*a joint study and @e-

termination ot the condition complained of through public

opinion surveys, epgineering studies, or such other methods

as may b eapplicabie and useful. If such condition is veri-

fied by these means and Radio is unable to rectify it within

thirty (30) days to Capital’s satisfaction, Capital may can-_
cel this Agreement upon ten (10) days’ notice in writing.

In the event the reétifieation of the said condition requires

equipment ¢hanges, Radio shall have a a, peridd |
of time to rectify the. condition. It is understood and
agreed that if the parties cannot agree on the exis terfee or

harm of the condition complained of, or the question of
whether it has been properly rectified, such matters shall

‘be submitted to arkjtration in accordance with Print XI

hereof. ,

In the event cancellation dccurs as above, Capital shall
assume the expense of removing thé equipment and shall
pay Racyo an amount equal to the widepreciated value of
the equipment, and Radio shall convey title to all of the
equipment to Capital. -As used in this sectiog, undepreci-
ated value of the equipment shall,mean actual cost to Radio.
of the equipment plus the following representing cost of

installation: For sets which have been installed for a pe-

riod of three (3) years or less, Fifteen Dollars ($15.00) per
set; for those which have. een installed more than thro
(3) years, Ten Dollars ($10.00) per set. ;

a ; e435." * « * “ . 7 « .

wae oe
I~ Wirness Wauerror, the parties have hereunto
_set their hands and seals’ this 13th “day of Décember, 1948.

Ca prrAL Transit Company, Cate
* By E. D. Merri, ae

President [Corporate Seal]
_ Attest: | ree 4
Wa. B. Bennerr, Serer a
Secretary Tae ee ettay eae

Wasuinoton Transir Rapto, Inc.- :
By Ben Srrovse, :

oc : President [Corporate sfal]
Attest: ela eon ° "
Tuomas: N. Down,’ °* . '
Secretary. VA
= « * ° , * o# * ‘© ; * "5
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ee eee
; :
a "a
* 9 ‘
4
Qa ayy z ¢
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‘ = oe 7.
\ ¥ +

IE OE II FE SLL LENS IE, DEB QP EASES

7

September

- Total Miles
Operated |

» Ai}

Capital Transit Company Exhibit No. 2.
CAPITAL TRANSIT. COMPANY

ee or T'RaFric Accents PER 100,000 Mures ‘Transrr
VEHICLES First Nine Monvus 1949 anp 1948:

oS)

January

February
March
April
May
June

-July

August

Total

Rate per

100,000 Miles
Increase or Decrease—Plus .45 |

Traffic Accidents
Ist 9 Months 1949
i 362.
. 364 -
» pT2
370 —
" 417
392
366
307 |
@ 345

3295
32,989,133

9.99

Traffic Accidents

1st 9 Months 1948
431
447
382
338
302 ©
319
303 +
291
327

——_

3140,

32,929, 018°

9.54

o -
& i
«

| ye
112 ;
Capital Transit Company Exhibit No. 3. ° e :

CAPITAL TRANSIT COMPANY

Rate or Trarric Accinents p&r 100,000 Miues on Rapto
~ Oprrateo Veutcies rrom 2-10-49 ro 9-30-49,
| Conga Wilt xame Veuicies For SAME Fertop 1948. q

sali, Accidents ;
: After Radio BeforRadio
a : Installation Installatio
February 5 | 3°
March - ee Bees
_ April 3 ss | tT:
are oh. 11 28 4 .
June i 8 ; VI é
July | eet Seas 30
August | 43 : ag
September 03 | pe. ae
; Total imei | | 160
~ Total Mikes * ete
Operated 1,826,602 1,784,675 :
Rate, per 6 co Soe
100,000 Miles 8.81 8.96 :
_ Increase or Decrease—Minus .15 . eee
La

ee

PEI Rs ES

Se rt

EERIE LISA PE EE EE

REMERON TI CE, SOLO ANUS AR RAAT AOS SIRE gh BOG Sete HERD ARN PEN Seo EER POR Se DSRS he ARE DEREN Lie bere eR RONEN
X . °
&

On July 14, 1949, this- Ootiunianinn: on its own motion,
issued its Order No. 3560 instituting an investigation to
determine whether or not the installation and yse of radio
receivers on the street cars and busses of Capital Transit
Company is consistent with public, convenience, - comfort
and safety.> At that time, the C any had.a number of

_ tars and busses a oe radio receivers. It
$ generally understoéd that eventually most of the street
ears and busses would be so equipped. | as

After appropriate notice, formal public hearings were
held on the subject matter of the order of inve@tigation on
October 27, October 28, October 31, and Novembey 1, 1949.
» Washington Transit Radio, Inc., and Franklin . Pollak
and. Guy Martin were granted the right to Hitervens and
participated throughout. the proceedings. .

In addition to the participation of People’s Counsel and |
of the interveners, appearance was noted for the Star-
Times Publishing Company of St. Louis, Missouri.

Full opportunity was afforded the representatives of
citizens and civie associations and of every other. inter-
ested group, and to évery individual present, to express
their views respecting the’matter before the Cornmission.

Brief was filed on Nevember 23, 1949, by intervemers,
Franklin S. Pollak and Guy Martin. ai cae

Reply brief was filed jointly by Capital ‘Transit Com-
pany and Wa shington Traggit Radio, Inc., on December
d, 1949. ead ae
Positions of the Parties.’ .

= ©

In their joint brief filed on December 5, 1949, Capital
Transit Company and Washington Transit Radio, Inc.,
summarized their position in this proceeding as follows: — .

e

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a
ea

Bs

ae Wl Oa NE

“eS SRD AAG TN WRI SOG AE TOS

i 415
(a) That there is no su! betantia} evidence of record show-
ing. that the installation of radig receivers on street cars
and busses, and thefr use -in reception of -the type of p¥o-

‘gram transmitted to them, is incesisistent’ with publie con-

venience, comfort or safety:

{b) Phat the probative evidence of record is overw helm-
ingin showing that there is no element of lack of safety.
inv vol ‘ed in-such ingtallation and use of ‘adios, and that the

“large majority of- the transit riding ‘public accept, and en-

joy, and benefit by: the programs recefred thereon;

(ec) That individual or smal! minority group objections
or contentions, based upon asserted rights, under the First
or Fifth Amendments, to privaey, freedom of speech, lib-.
erty, and property, and dislike for the ptograms, in the’
Capital Transit Company vehicles available for public use, °
are without merit and are irrelevant to any. issues in this
proceeding | arising’ out of the statutory powers ‘of the Com-
rhission ; and ‘ : :

(d) That this proceeding should be dismissed for. want
of evidence to sustain any Jawful action by the Commission.

Interveners, Pollak and: Martin, summarized their argu-
ments in their brief filed on November 23, 1949, in the fol-
swing manner:

(1) The-use of radio receivers in the iivesaanbacaua of
this case deprives riders of freedom te listen or not to liste
in violation of the First Amendmdht te the Constitution;
and deprives riders of. liberty without due process of law_
in violatton. of the Fifth. Amendment to the Constitution.

‘ (2) The use of radio receivers in the cirenmstances of >
this case takes the private property of riders for private
use in violation of the Fifth: Amendment to the Constitu- -

* tion. 2

(3) Apart from constitutional quentiotia the use of radio
receivers in ‘the cireumstances of this case isG@nconsistent.
with public convenience, comfort and safety begause of the
effects of the broagrasts on a significant number of riders -°
antl operators. v4

oto r

°

116 | .

(4) The approval of these hroadcasts by’ bindorite of
the riders and a majority of the operators is irrelevant.

Problem Before.This Commission, .

The investigation conducted and the evidence presented
at the formal publie hearings held on,the subject of the in-
stallation of radios in the street ears and busses of Ca itak,
Transit Company must, of necessity, be considered by- this ©
Commission strictly in the light of its jurisdictional powers. -
The extent of these powers was indicated in the notice of
investigation issued by the Commission on July 14, 1949,
wherein the purpose of the investigation. was defined as J
being the determination as to whether ore not.-the installa- \
tion and use of radio receivers in street cars and busses is \
consfstent with public’ convepience, comfort and safety. .

The . Commission’s decision on such issues” must rest
‘ wpon a basis more tangible than impassioned pleas which
_ reflect personal feelings either in favor of er against radios
-in transportation Vehicles. _

As indicated above, one of the requirements contained
inthe Aet which. is administered by this Commission is that
every public utility operating within the District of Colum-
bia must. furnish service and facilities that are reasonably ,
safe. This Cofmission is given authority by such Act,
after hearing upon its own motion ,or upon complaint, to
direct such changes Jn equipment or condition of the ve-
hicles of common carriers‘as are necessary to promote the
’ comfort-or convenience of the public. It was to these ques-
tions that the Commission’s inv estigation was directed.
Summary of Testimony. |

Phe record shows that, as of October 15, 1949, ‘there were
212 radio sets installed in the Conmipany’s street cars and
busses, and that it is contemplated that a total of 10 sets
will be installed. ee

On December 13, 1948, the Conipany entered into a con-
tract with Washington Transit Radio, Inc., which provides,
among other things, that the radio receiving equipment will
be Xalied and maintained by -Transit-Radio without cost

a

> - w

ent | ih

to Capital Transit Company. Washington Transit Radio,
Inc.,.in turn, has a cofttract with radio station WWDC-FM
covering program service for reception in the vehicles of
Capital Transit Company. - e

As indicated hereinabove, all interested parties were
given full opportunity to express their views.. At the be-
ginning of the hearing, resolutions submitted to this Com-
mission by the Federation of@itizens Associations and cer-
’ tain of sits member associations were listed, ana. represen-
‘tatives from such associations were permitted to expand
the views expressed by their groups. The Federation of
- Citizens Assocjations went on record as favoring the re-
tention of radios in street cars and busses, as did the North
Washington Council, which represents about 22: different
associations, and the National Federation of Federal Em-
ployees, Local No. 2.. Other associations favoring music
on, transportation vehicles included the Northeast Busi-
nessmen’s Association, Inc., and the National Association
of Letter Carriers. As to the individual Citizens’ Asso-
ciatipns which filed resolutions with this Commission, three
expressed opposition to radios and 15 were in favor of»
their retention. A group of 43 persons, designating them-
‘selves as the Transit Riders Association, registered their
opposition. :

In general, the objections raised by individuals who at
tended the hearings to radios in transportation vehicles
were based upon the following reasons, among ,others :

It interfered gvith their thinking, reading or chatting -
with their companions; it would lead*to thought control;
the noise was unbearable; the commercials, announcements
and time signals were annoying; the music w as of the poor-
est class; the pr actice deprived them of their right to listen
or not to listen; they were being depriyed of their property
rights without dlue, process ; their health was being im-
paired; the safety -of operation was threatened because of
the effect of yadios upon the oy erators of the vehicles.

dlaving in mind the salient points of public convenience,
comfort and safety, the Commission has gi ven very care-

4) Ber 118 eae Q
fu) consideration to the testimony bearing on these factors.

Captain Loraine T. Johnson, representing the Police.
Department of the District of Columbia, analyzed for the
record statisties covering traffic accidents, since July 7,
1949, in which street car and buses were involved and stated
that, in his opinion, radio-equipped vehicles do not enter
into the traffic picture-at all. |

‘William H. Voltz, Planning Engineer of the Department
of Vehieles and. Traftic, Stated that, in the absence of any
evidence. that. radios in motor vehicles have been a con®
tributing factor in traffic accidents, the Department »which
‘he represented does not néw consider such installations 10
de a traffie matter. :

The Engineering Barend of this Commission, through

4-F. A, Sager, Chief Engineer, concluded that when the
radia is properly tuned safety of ope eration is not impaired
due to the operation of the radio. i

Employees of Capital Transit Osiipaisy charged with
the supervision and instructing of street car and bus op-
erators testified that they uave not found, in the perform-
ance of their duties, that the reception from radios inter-

fered with their operation. of the vehicles nor with the

_safety of their operation. These witnesses also testified
that it was apparent that reception over the radio speakers
did not affect the safety of operation by other operators

— observed by them as instructors or supervisors, Further, |
_the witnesses stated that the radio reception does not inter-°
fere with the ability of the operator to hear street signals,
such as policemen’s whistles and auto horns.

It was the opinion of the operators .that music on the
vehicles had a tendency to keep the passengers in a better
mood, and. that it simplified transit operations.

An analysis of the accidents involving street cars an.
buses reflects the fact that the radio does not in any way
interfere with efficient operation and has not been the cause
of any ‘accidents, according to the testimony of a Company. .

_witness who is a safety supervisor.
Kae

119 5) | fivimssshe,

A public opinion survey was conducted ‘hy mdward 4.
Doody, & Company,. from October 11, 1949 to October 17,
1949, in order to determine the attitude of Capital Transit |
Company -customers toward transit radio.’ Their survey
employed the rules of tandom selection and was confined
to interviews aboard, radio-equipped vehicles. The princi-
pal results obtained through the survey, as presented in.
this record, were as follows: :
Of those interviewed, 93.4 per cent were, not opposed ;
that is, 76.3 were in favor, 13.9 said they didn’t eare, and
3.2 said they didn’t know; 6.6 per cent were not in favor,
but when asked the question ‘‘ Well, even though you don’t
eare for:such programs personally, would you object if
‘the majority of passengers wanted buses and street cars
» equipped with radio receivers,’’ 3.6‘ said they would not
object or oppose the majority will. Thus,-a balance of 3
per cent of those interviewed were firmly opposed to the
use of radios in transit vehicles.
Testimony presented by Frank F. MeInfosh, Consulting ~
Engineer, related to absolute sound levels-obtained in a °
number of street cars and buses. The measurements were
‘taken by@Mr. McIntosh at three points; namely, at the
front of the vehicle—near the driver—at the middle of the
vehicle, and within about six feet of the rear of the vehicle.
Also, the measurements were made while the velicle was
in motion, with and withgut .the radio on, and while the.
- vehicle was standing with the radio en. The measurements
were made in terms of decibels, ‘which, roughly speaking;
represents. the smallest increment of increase or decrease, ~
in audio level that the ear can obfain. or understand ar
recognize. md
The testimony of this witness was to the effect that the
actual energy contributed by the radio was $6,small that it
was not possible on the meter to measure the difference in
sound level with the radio on and off. .He explained that
the reason the radio is heard is not necessarily a matter
of straight energy. nt is a matter: of the working of the

%

x

Sait Seat AS -,

vi

Conclusion. /-

-A True Cary:

ee ae six
° ua ge ; aaa
= | 120. a
mind; that is, a person can differentiate between sounds or,
ean get used to a sound and put it out of his mind. The
witness also testified that it is not possible to provide

— venergy through a radio, carne: system that eould:

ee

“Other arguments’ Cecueated: for ‘the consideration - ‘of
the Commission pertained to the use of radios in Atreet

cars and buses at times” for public purposes, such as the
necessary @r emergericy rerouting ef vehicles; the pub-
lieizing of ‘public interest enterprises, and f for ‘the protec-
tion.of the public in time of crisis,

From the testimony of record, the conelusion is ines-
capable, that radio reception in street cars and buses is

not an obstacle to safety of operation.

Further, it is -evidertt that publie comfort and con-
venience is not impaired and that, in fact, through the

‘ereation. of better will among passengers, it tends to -

improve the conditions unger which the public rides.

In the light of these conclusions, it-is obvious that the

‘installation’ agd use of radios in street cars and buses of
the Capital Transt} Company is not inconsistent. with pub-

lic convenience, comfort and safety. For the foregoing

reasons,

itr Is OnpereD: ; Maite . :

po}
f

That. the fcresatieation. initiated by Commission Orde?
No. 3569 be, and it,is hereby, dismissed.

2

NN. H. Herzen, ie gh. et iy
_Chief Clerk. ee earth : i
By the Cotamidsion: Seite ae
Aus ae Minxican,
e) Executive Secretary.’ é

ale

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=

PR POR

Dyes
Se ae

Sargeras

at a PENS ae 2

Spee nivale retype then 8

Se

isles eae es cater ae

——
’

a ee eeeeeeeeeereerrreerrrrrerrrrmherreereeneeeeeeeeee

°
*

PUBLIC U TILITIE S COMMISSION OF TH E DISTRICT OF COLUMBIA.

.

y * Order No. 3631 ;
; Hebruary 15, 1950

Tx Tow Marrern (ie | 2
~~? ~~ -* - ~~~ * ore ~~ *

oo -_- .

Radio Reception m Buses and Street Cars of oe.

Caprraz, TRanstr CoMPANY., 3 Es
P. U. C. No. 3490/1,
Farmal Case No. 390. "r
&
Order Denying Applications for Reconsideration of
Commission Order No. 3612. :

The Commission has received applications for reconsider-
ation of Order No. 3612 from Franklin S. Pollak and Guy

Rr tin, Paul N. Temple, Jr., Transit Riders’ Association, |
art I

fector G. Spaulding and others, Bernard Tassler for him-
self ‘and for National Citizens’ Committee Against’ Forced
Reading and Foreed Listening, and Progressive Citizens
Association of Georgetown. Careful consideration, has
been given to the representations set forth in all of the said
applications, and they have been duly considered in the
light of the. testimony of record before the Commission and

its findings and opinion accompanying Order No, 3612. The
Commission is of opinion that its findings ‘and cpinion and

Ordex No. 3612 are clearly supported by the testimony of

record and should be affir des For those reasons, the said

_ applications for reconsideration will be denied. |
Te Is OxpErev: hae te . at

* That tis applications for ‘reconsideration of Order No.
3612 field by Rrariklin-S, Pollak and Guy Martin, Paul N.
Temple, Jr., Transit Riders’ Asociation, Hector G. Spauld-
ing and ‘others, Bernard Tassler for himself and for ‘Na-
tional Citizens’ Committee, Against Moreed Reading - and .

122 ;

Forced Listening, and Progressive Citizens Association of
Georgetown be, and they are hereby, denied.

> . o
A True Copy:
N. H, Herzen, ~ :y.
Chief Clerk. |
al By the Commission:
| one Monte KE. J. Miixican, zi
Executive Secretary.
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[fol. 423] Minute entry of argument (omitied in

.

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2
.

United States Court of Appeals ee

pets - POR THE
a DISTRICT OF COLL MBIA CIRCUYT
Aer mike Cee
| No. 10777. a /
FRANKLIN 5S. POLAK AND Guy MARTIN, APPELLANTS
ae

Pusiic Uritatmes COMMISSION OF ‘ruiz District or COLUMBIA,
et al., APPELLEES :
ial 3 from the U nite States District Court for the District
: of c ‘olumbia

“ Decided - 1 Juge 1, 1951

Mr. Paul M. Segal, with whom Mr. Franklin 8: Poliak was on the
brief, pro se, for appellants. Messrs. Harry P. Warnen and Quayle
BR, Sinith entered appearances for appellants.

Br. Daryal A. Myse, with whom Messrs. Edmand L. Jones and.
FP. G. Awalt were on the brief, for appellee Capital Transit Company.

-Mr. Lloyd B. Harrison, C ounsel, Public Utilities Commission of the
Distriet of Columbia, with whom Mr. Vernon E. West, Corporation
‘Counsel, D, C., was on the brief, for appellee Public Utilities Com-
mission of thé District of Columbia. '
_ Mr. W. Theodore Pierson, with whom Messrs. Vernon C. Kohlhaas
‘ and Thomas N. Dowd were on the brief, for appellee Wasington
Transit Radio, Inc.

Messrs. Morris L. Ernst, poe Lawrence Fly, Osmond K. Fraenkel,
Alerander. B. Hawes, Arthur Garfield. Hays, and Laurence “A. Knapp
. filed a brief on, behalf of the American -C ivil Liberties -Union as
amicus curiae urging reversal.

al

- Before Epaurron, Bazeton, AND Fan, Circuit Soden

Epverrven, Circuit Judge: " Appellee Capital Transit Company
(Transit) operates streetcars and buses in the District of Columbia.
In 1948 Trausit made a contract with appellee Washington Transit
Radio, Ine., (Radio) bx whieh Radio was to install and maintain
loudspeakers in: Transit vehicles aud provide broadcasts at Aeast 8
hours? daily e except Sunday. In. October, 1949, loudspeakerz were “in

1 At. the time of the Commission’s hearing, actual hours of operation were 7
a.m. to 7 ss ne ,

! vaded «

ment of the Constitutiori»sme

Court, and this court are clear: All
-of Congress fo ‘‘furnish service and facilities reasonably safe and

‘
5 .
.

operation in 212 vehicles and it was planned to imerease the number
to 1.500, : @- ° é :
Though Transit and "Radio eall the broadcasts ‘ ‘musie as you ride’’,
they. include not only musie but alsa ** commer ials, ‘annomneétments,
‘And time signals’ ’. The contract. permits Six } of ‘commercial
announcements’? per hour. These vary from 15 %6 35 seconds in
length and dre usuatly. scheduled about once in five minutes, though
the intervadawries. «
Appellee Public U Htilities Comunission received. protests. avainst
Transits use of radio. It ordered: an investig ration and held a hearing

-**to determine whether. t the installati ion and use of radio receivers

on the’ street tars and musses of *Capital Transit Company is con-
sistent with public convenience, comfort and safety ...7 Appellants,
who ride Transit vehicles? and other persons and orggnizations were
allowed to intervege and took part in the hearing.
found that transit: radio does not rednece safety, ‘‘tendd to improve the
conditions under which the public rides,”’ and ‘Sis not inconsistent
with publie convenience, uate and safety."’ The-Commission’s
final order ‘‘dismissed’’ its investigation.

Appellants and. others appe¢ aled to the District Court from the
Commission ’ s order. Appellants’ petition of appeal states that appel-
lants are ‘‘obliged to use the street cars and busses of. Capital Transit
Company in connection with the practice of their profession ad on
other occasions and are, thereby subjected against their wiil to the
breadeasts inSissue. These broadeasts make it difficult for petitioners
to read and converse ..:’’ Each of the appellees, 7.¢. the Commission,
Transit, and Radio, moved to dismiss the petitions of appeal as not
stating claims on Which relief covld be granted and as not within
the court’s jurisdiction. The court dismissed the petitions on the
graung that ‘‘no legal right ef the petitioners . . « has been
? This appeal followec¢
rf eantention is
out due process of aie in

ransit radio deprives them

Appellant :
olation of the Fifth Amend-

of liberty. wi

ities Commission, the District
blie utilities are required by Act

1. The jurisdittion of the Publie U

adequate and in all respects just and reasonable’’ and the term
‘‘service’’ is used ‘Sin its broadest and qaost inclusive sense.’’ TD. C.
Code (1940) §§ 43-301, 43-104. The Commission is authorized fo
fix and enférce standards of service. §$§ 43-320, 43-309, 43-1002.

he Commission:

o.78 Say?

TL ge ae Ue SO hee ee i ee

ey

Sinee the Commission’ s order was its Snal decision that Transit,

may use loudspeakers in its streetcars and buses, the order was
appealable. “Any . person’. .*. affected by any final order or

decision of the Commission, other than an order fixing or determining

the value of the preperty of a publie utility in a proceeding solelv

for that purpoge, mav’’ appeal to the District Court and from that.

court to this. D. C. Code (1940) § 43-705. .‘‘ Administrative deter-
minations which are not commands may for all practical purposes
determine rights as effectively as the judgment of g court, and may
be reexapsnfed by courts under particular statutes providing for the
review of forders.’ ”’ act aig "ederation of Lakor vy. National Lahor

Relations Board, 308 U. 401, 408. Sinee the appellants use the,

‘service of Transit and intervened hefore the Commission they are
“affect ed by”’ the Comiitission's order and ny, appeal *

2, Transit” passengers “commonly ‘have
whether they want to or not The Commissign made no finding on
this point but the fact is well known. bt was proved by many witnesses.
[t is in legal effect admitted by appellees’ motions to disnitiss the
petition ‘of appeal, since the’ petition states that appellants “are sub-

easts make it difticult for petitioners to read and converse Jatt ee
brief of appellee Radio admity the fact in these terms: “‘it is impossible
to vive effect to this alleged right [vot to listen] without frustrating
the desire of other passengers to listen...” Appellee, Transit says
in its brief: **The record shows that every precaittion is taken in the
installation of the equipment and its maintenance to miniinize the
sound level at the operators’ position and to distribute sqund evealy
throughout the publie spaces in the vehicle... .’? WWDC-FM, the
transmitting station, advertised im 1949 that Transit Radio was
‘delivering a guaranteed audience.” . The passengers are known in
the industry as a ‘‘captive audience’’, Formerly they were free to
read, talk, meditate, or relax. The broadcasts have replaced freedom
& attention with forced listening.

Most people have to use mass transportation, In the District, of

ge

oy

Fete EL oe

* Columbia this means they have to use Transit and hear the broad-

casts. Even as between the District and the adjoining Pentagon’
region in Vi irginia the Supreme Court has said: “*-. . . most govern-

Bd

eompelled to begin’ OF ccomplete. their trips

oe a ee .

ties Commission, 86 U.S, App. D. C. $27, 151 FP. 2d 609, we held that a consumer
of electricity und intervenor before the Commission was ‘‘ afeeted by’? and
could appeal from a Commission order fixing eleetrie rates. w e said (p. 231):
‘* Conbress has used language, throughout the applicable Code sections, indicating

: 2 Henderson v. United Staies, 339 U.S. 816. In United States v. Public Utili

actions.’

- 2 Appellants’ supplementary application ta the Commission for rehearing ¢on-
tains a physicist’s affidavit explaining in technical terms that ‘‘the ear hears
plainly at its low sound level what the meter does not detect at its high sound:
. leavel,’??’ : e

_« 4Emphasis added. ;

* THe 1949 Rapio ANNUAL, p. 383.

In their supplementary application for reconsideration, appellants referred to
‘te brochure issued by Transit Radio, Tne.,’’ the corporation deseribed. by a wit
ness for Washington Transit Redio, Ine, as the netional or parent company,
This brochure is entitled si New Idea--A New Voice-—-A New Medium for Ad-
vertisers —transit radio.”? W ashington is one of the cities concerning whiek it
says: ‘The advertiser knows how large an audience he is reaching in cach
Transit Radio city because the rate he preys _ essentially on ghe actual
count of paid passenger feres. No surveys aré necessary—gueaswork plays no

# part. ... Transi@radio ... pravides a definitely measurable audience ... When
the stidio mierophone is switehed on for the unnownter to read a eommercial,
thé transmitter antomatically emits a supersonic note which attivates the veiee —
emphasis cirewit and raises the volume aheat25-per-rent. The result: Fvery-
oue heats the commercial! . . . Speakers are mounted on the overhéad. panels,
_ alt tnhately on the right and! left sides. so that every pusscneer gets perfect recep
tion fren a speaker just overhead. 1? the? ean hear—they ean hear your com
pester 2% Appell: ints asked to he pe rmitter! to examine eoneerring the ‘*25 per
rent*’ statement a witness who. hal testified that “*The measurable difference
neonationllw’* hatween the redid sets when operating on voiee ant’ on musie ‘is

hear the broadcasts

ject ted against, their will’to the broadcasts in issue. These broad-

ment employees, in going to and ebloniny from their work, were
ov utilizing buses wfistreet.

os intention that consumers shall have a right to challenge the Commission’ a

¢

?

oe

° . be f @ : :
ears of Capital Transit."’ United States v. Capital Transit Co., 325
U.S. 357, 359. . 2 ;

3. Though statutes and the law of torts forbid invasions of liberty.
by-private individuals, the “constitutional guarantees of. liberty are
diréeted against government action. But acts of individuals «dre
beyond the reach of these guarantees only when they are *‘ unsupported
by State authority in the shape sf laws, «customs, or judicial or
executive proceedings.’’ Ciml-Right Cases, 109 U. 8. 3) 47. Fer:
example, since Smith v. Auwright, 321 U.S. 649, was eecidect a state ‘
vannot ‘‘by permitting a party to take dver a part of its élection
machinery . ... avoid the provisions of the Constitution forbidding |
racial discrinvination in elections .. .’’ Rice y. Elmore, 165 F. 2d
387, 389 (C. A. 4th). A private corporation that owns the streets
of a town may no more abridge the freedoms of press and religion than
a municipality regularly organized. Marsh. v. Alabama, 326 VU. 5.
501, 506, The Supréme Court has recently said: ‘‘ When authority

‘ derives in part from Government’s thamb en the scales, the exercise

of that power by private persons becomes closely akin, in some respeets,
to its exercise by Government itself.’’ American Communications
Ass’n v. Douds, 339-17. S. 382, 401. . ped

The’ forced listening imposed on Transit passengers results from
governtnent action. By authorizing Transit and forbidding others
to operate, local streetcars and buses, Congress made it necessary
to ride the vehicles in which Transit makes it necessary to hear the
broadcasts’ Streetcars and buses ¢éannot operate in city streets with-
-out a franchise. Congress has given Transit not only a franchire but
a virtual monopoly-of the entire local business of mass trans .ortation
of passengers in the District’ of Columbia, 2 ene
_ Furthermoré the forced listening has heen sanctioned by the gov-
ernmental action of the Commission. If the Comrsission had found:
it contrary to publie comfort, or convenience, ar unregsonable, it «
would have stopped. Because the Comimission decided otherwise it
continues. To suggest that_a ‘negative’? order cannot, be the final
step in a misuse of government power is te assert a distinction the* ,
Supreme Court has repudiated, **. . . An order of the Commission —
dismissing a complaint on. the merits and: maintaining the status quo

is an exercise of administrative function, no more and no lesa, ythan
an order directing some changg,in status.’’. Rochester Tel. ®b. ‘v.
United States, 307 U. S. 125. 142. Mitchell v. United States, 313 —
U. §. 80, 92; Henderson v. United States, 339 UT. 8.816. Even failure’
to enter any order may be a denial of constitutional rights. Smith
v, Illinois Bell Tel. Co., 270 U.S. 587. . By dismissing its investigation

\
fr - ; .
6 The monopoly is apparentiv ecomplefe except that an interurban line that
operates, in one part of the District carriés local passengers. «This line also, ac

cording to the testimony, subiegts its passengers to forced listening. j :
‘Transit was formed; under an Act and a Joimt Resolution of Congress, by a
merger of previously jndependent tines. ma. Aet Of March 4; 1925, 43 Stat. “1265;

“Joint Resolution of Janugry 14, 1923, 47 Stat. 752 :
Congress authorized the end of competition and enacted that there’ should be;
no new competition except upon a showing exceedingly diffieslt to mage. ‘No
competitive street railway or bus line, that is, bus dr railway line for the trans
portation of passengers of the eh&racterowhich mrs over a ‘given route on a fixed
achedule, shall he established withort the prior issuance of a certificate by the
Public Utilities Commission of the Distriet of Columbia to the effect: that the
eornpetitive line is necessary for the convenience of the pablic.’’ See. 4 of the

nae ee ~ -—r

; (a) 3

a ; . s ° 2 » c
no? proper basis for an appeal ‘from the Commission’s order.’’ In
our opinion these contentions are erroneous and the appellants need
not sue out an injunction. To say that they ‘‘ngpst. institute another
and distinct (bea | would be to put aside substance for needless
ceremony.’” Smith v. Illinois Bell Tel. Co., 270 U.S. 587, 591.

The Wagner Act provided that a-Cirenit Court of Appeals might
enforce, modify and enfotee, or set — an order. of the National
Labor Relations Board.’® - it did net provide that a court might re-
mand f entice ta the Raard for further nraceodings, Rut in Fard-

Motor Co. v. National Labor Relations Board, “305 U. S. 364, 372-373,

;

*

We Sirpreme Court Ireld that ‘‘If the court itself had set aside the
findings.and order of the Board . . . the court’ could have remanded
the cause for further proceedings in conformity with its opinion. ...
‘The jurisdiction to.review the orders of the Labor Relations Board is
‘vested in a court with equity powers, and while the court must act
within the bounds of the statute and without intruding upon the ad-
ministrative province, it may adjust its relief. to the exigencies of the

ase in accordance with the equitable principles governing judicial:
action, ‘The purpose of the judicial review is consonant with that of
the administrative proceeding itself,-—-to secure a just result with a
minimum of technical requirements. The statute with respect td a
judicial review of orders of the Labor Relations Board follows Closely
the statutory provisions in relation to the orders of the Federal Trade
Commission, and as to the latter it is well established that the court
may remand the cause to the Commission for further proceedings . . .”’
Similarly in Federal Power Commission v. Pacific Power & Light Co.,

307 U. S. 156, 159- 160, in holding that a Court of Appeals had juris-
diction to review a Power Commission order declining to authorize

“a transfet of corporate assets the Supreme Court said: ‘‘it is urged
that . . . the court itself cannot ft the prohibition of the statute by

granting pernuission for the transfer, nor order the Commission oA

erant such permission. And so it is claimed that any action of ¢
_eourt in setting aside the order of the Commission would be an pire

‘ westure . . . But. . . The court has power to pass Judgment upon

challenged principles: of law insofar as they are relevant to the dis-
position made by the Commission. ‘. . a‘judgment rendered will

le & final and indisputable hasis of action . .%’ Interstate Commerce
Comm’n v. Baird, 194 U.S. 25, 38. In making such a judgment the

court does not intrude upon me provine e of the Commission, while
the constitutional requirements of ‘Case’ or “Controversy” are satis:
fied. Fer purposes of judicial finality there is no more reason for
assumjng that a.Commission will. disregard the direction of a review,
-ing’tourt than that a Jower, court will do 80.’

¢ The judgment of the District Court | is therefore reversed with in-
structions to vacste the Commission’s order and remand the case,to
the Campnission for further proceedings in conformity ‘with this
opinion, ” - ; ; 8 Pes

: «i! Reversed.

=a

192.

6 ¢ bs . 8

[fol. 132] Unirep States Court oF APPEALS FOR
rue Disrricr or Cotumpia Crecurt, Apro. Term, 1991

No. 1777
KrankLiIn S. Por.aK and Guy Martin, Appeiianis,
| -

Pusiax Uriiities, Commission or THE DistRict oF.
: Conumsia, et al. |

_ Appeal from the United States District Court for the
qo. seas Distriet of Columbia - ° |

Before Edgerten, Bazelon and Fahy, Vircyit Judges

- JuvomENt—Filed June 1, 1951

| This canse came on to be heard on the transcrip: of the
cord from the United States District Court for thie Dis-
* trict of Columbia, and was argued by counsel.
On consideration whereof, It is now here ordered and
adjudged by, this Court that the orders ef the said District
Court appealed from in this cause be, and the same are
hereby, reversed, with costs of appellants to be borne by
appellees except the Public Utilities Commission, and that
this case be, and it is hereby, remanded to- said District
Court with perereats vacate the order of the Publte
Utilities Cominission ard remand the case to the Commis-
sion for further proceedings in conformity with the opinion

of this Court. . | Sade
pre ery: om Per Cireuit Judge Edgerton.
. Dated June 1, 1951. : Px
| [File Endorsement Omitted]. :
BOR Taghes 3
* &
°

9—224 & 295

\

[fol 16°) Clerk's Certificate t¢

(fole. 23-160] - Petirion FOR Rewiisiree CovERING 28 Paces
Finep June 14, 1951 Omirren From Tus Prost. Ir Was
Dextep, anp Norurya More

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0143%3A03. Public record. Not legal advice.