OPPOSITIONS OF HAWAIIAN TELEPHONE COMPANY TO PETITIONS FOR REHEARING OF RCA COMMUNICATIONS INC. AND GLOBE WIRELESS, LTD.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP78S05450A000300010007-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 27, 2016
• Document Release Date: April 24, 2013
• Sequence Number: 7
• Publication Date: October 17, 1955
• Content Type: MISC

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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington 25, D.C.
In the Matter of the Application of )
)
AMERICAN TELEPHONE AND TELEGRAPH COMPANY )
)
For authority under Section 214 of the )
Communications Act of 1934, as amended, ) FILE NO. P-C-3630
to construct and operate twin deep-sea )
submarine cables between Point Reyes, )
California and Koko Head, Oahu, Hawaii )
In the Matter of )
)
License authorizing the landing and )
operation of twin submarine cables ) FILE NO. S-C-L-14
between Point Reyes, California and )
Koko Head, Oahu, Hawaii by the American )
Telephone and Telegraph Company )
OPPOSITIONS OF HAWAIIAN TELEPHONE COMPANY
TO PETITIONS FOR REHEARING OF RCA
COMMUNICATIONS INC AND GLOBE
WIRELESS LTD:.
Hawaiian Telephone Company (Hawaiian) pursuant to
the provisions of Section 1.895 of the Commission's Rules of
Practice and Procedure, hereby submits its oppositions to the
petitions for rehearing filed by RCA Communications, Inc.
(RCAC), and Globe Wireless, Ltd. (Globe), requesting a modifi-
cation of the Commission's orders released September 8, 1955
and September 19, 1955. Hawaiian respectfully requests that
the Commission deny such petitions for rehearing. In support
of this request, Hawaiian respectfully represents as follows:
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1. Hawaiian hereby incorporates by reference its
opposition to the petition for rehearing filed by The Western
Union Telegraph Company (Western Union) for the purposes,
among others, of showing that:
(a) Hawaiian has a direct and immediate inter-
est in these proceedings.
(b) Section 222 of the Communications Act and
the conditions and obligations set forth therein
are not applicable to these proceedings or to the
Applicant, American Telephone and Telegraph Company
(AT&T) or to Hawaiian, nor does such section express
any Congressional policy applicable to these pro-
ceedings.
(c) Section 214 of the Communications Act and
Sections34-39 of Title 47, U.S.C. are applicable
to this proceeding.
(d) Under the definitions of Section 3 of the
Communications Act, telegraph communications author-
ized to be transmitted via the trans-Pacific cable
?are "interstate communications."
(e) Under Section 214 of the Communications
Act the criterion for extending lines is "present
and future public convenience and necessity" which
is to be construed as to secuTe for the public the
broad aims of such Act.
These showings, it is respectfully submitted, like-
wise show that Globe's allegations that the orders controvert
Congressional policy are without merit. ?
2. RCAC requests the Commission to set aside its
authorization for use of the cable for telegraph purposes and
to delay its decision with respect thereto. It asserts such
authorization has not been justified because the "Orders do
not 'find f that the r.able facilities are required for telegraph
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service." It is important to note in this connection that
RCAC does not allege that the Commission has not made the req-
uisite statutory finding in authorizing the construction and
operation of the cable or that such finding is not otherwise
supported. Section 214 does not require a finding as to the
adequacy of existing facilities. In construing the same stand-
ard in Section 207(a) of the Interstate Commerce Act, Part II
049 U.S.C. 307(a), which appears to have the same common
source of derivation as Section 214 of the Communications Act),
the courts have repeatedly held that there is no necessity for
the Interstate Commerce Commission to make any specific find-
ings concerning the inadequacy of the existing service. Norfolk
allatmau_gal. v. U. S.9 (1950) 96 F. Supp. 756, 760, af-
firmed 340 U.S. 802; St. Johnatmg_a=lag_22. v. U.S., (1951)
99 F. Supp. 977, 981; A.B. & C. Motor Trans . Co..V. U.S.,
(1946) 69 F. Supp. 166, 169; Lang TE2amt_gom. v. U. s., (1948)
75 F. Supp. 915, 931. Although such a finding is unnecessary,
the Commission set forth in its order of September 8, 1955 that:
"It is the opinion of the agencies of the
Executive Branch of the Government responsible for
defense planning in this matter that the installa-
tion of a deeE-sea cable caEable or_plamlylag tele-
phone, ttlagrull and facsimile types of service at
the earliest practicable date is vital to the sup-
port of our national defense."--TEmphasis added.)
Thus, the order does recitpthat the use of the cable for tele-
graph service is vital to national defense which the Commission
considered to be of paramount importance and outweighs all other
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considerations involving public convenience and necessity. It
is therefore apparent that the Commission determined that the
cable facilities are required for telegraph service.
3. In the exercise of its
under Section 214 of the Act, there
siderations by which the Commission
administrative function
is no specification of con-
is to be governed in de-
termining what the public convenience and necessity require.
See: Cligalmas Ohio R7. CO. V.
283 U.S. 35, 42. The
Commission has been entrusted with a wide range of discretion-
ary authority in exercising its functions under such section,
v. Parker, 326 U.S. 60, 65. "Facts vary with cases
and jnterstate Commerce7 Commission may properly reach vary-
ing conclusions therefrom, and it may, within the powers en-
trusted to it, vary its standards and principles of judgment."
EnaglI2!lms.2. v. U.S., (1943) 57 F. Supp. 278, affirmed
322 U.S. 715. The Commission decided that the "needs of Na-
tional Defense of the United States" are not only of paramount
importance in evaluating the proposed cable project, but "out-
weigh any other consideration," and that the cable is vital to
such needs. Clearly, this determination is in accord with its
discretionary authority under Section 214.
4. RCACIs assertions that the orders do not follow
Commission precedents disregard fundamental differences between
the trans-Atlantic cable and the trans-Pacific cable. It is
true that the Commission deferred decision with regard to
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whether the microwave facilities to be associated with trans-
Atlantic cable should be used for telegraph communications
between the United States and the United Kingdom and beyond.
Under Section 3 of the Act, such communications are "foreign"
not "interstate." Telegraph communications between the Main-
land and Hawaii are, by reason of the definitions in Section 3
of the Act, "interstate communications." The Commission regu-
larly issues authorizationsfor the telephone carriers to add
to their "interstate facilities" for telegraph communications.
The Commission has not, as far as Hawaiian is aware, ever de-
ferred a decision as to the use of the "interstate" facilities
until they were completed. The Commission/s decisions involv-
ing "foreign" telegraph communications clearly show that there
are many problems involved in the regulation of such communi-
cations which are not common to "interstate" communications.
Additionally, certain factors involved in "foreign" communica-
tions are subject to negotiations between the United States
and foreign governments.
5. On page 4 of its original statement in these pro-
ceedings Hawaiian set forth the following intention:
"Our company has no intention of offering public
message telegraph service between Hawaii and the
mainland. However, we do not believe the Commission
should restrict the services which our company or
the A.T. & T. may offer to the public to any greater
extent than interstate communication services pro-
vided by Bell System or other independent telephone
companies are restricted on the mainland."
Paragraph 5 of AT&T's application, according to
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Hawaiian's understanding, sets forth a similar intention. Thus,
there is no suggestion of "unrestricted entrance" by AT&T and
Hawaiian even into the "interstate" telegraph field between the
United States and Hawaii. The Commission's published statis-
tics show that on an overall basis international telegraph
carriers derive only small percentages of their telegraph reve-
nues from non-message traffic. When it is further considered
that telegraph traffic between the Mainland and Hawaii consti-
tutes only a small segment of the overall telegraph communica-
tions it becomes apparent that the area of telegraph competi-
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tion involved is indeed most restricted.- It thus is apparent
that such limited area of competition will have little, if any,
effect on the international telegraph carriers. Definitely,
there is no basis for RCAC's assertion that such competition
"can only result in the demise or impairment of the telegraph
industry," or for Globe's allegation that such competition "would
result in diversion of traffic which would impair Globe's
ability to serve not only between these points but between other
points on its system as well."
6. For all the foregoing reasons, it is apparent the
Hawaiian cable does not raise "many," if any, of the same
1 Statistics of Principal Domestic and International Telegraph
Carriers Reporting Annually to the Commission, As At
December 31, 1954, And For Year Then Ended, F.C.C. No.
23041; Statistics of the Communications Industry in the
United States, Year Ended December 31, 1953, pp. 142-144.
2/ Q. Charges for Communications Service 12 F.C.C. 29, 63.
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problems which the Commission decided it should investigate in
connection with the trans-Atlantic cable. However, should any
of such problems occur, the Commission can deal with them under
the regulatory authority set forth in the Communications Act.
Even assuming arguendo that some of the same problems may be
involved, the Commission is not bound to reach the same conclu-
sion as it did in authorizing the trans-Atlantic cable. See:
Churchill Tabernacle v. F.C.C., (1949) 160 F. 2d 244; F.C.C. v.
Broadcast Service Omalzation, (1949) 337 U.S. 901.
7. RCACTs expressed fears that use of the cable in
the manner authorized by the Commission would result in the
elimination of radio between the Mainland and Hawaii and would
be hazardous for the nation are without foundation. Hawaiianis
original statement in these proceedings sets forth the following
representation:
"It is our belief and intention that if and
when the proposed cable system is installed and
operating, commercial radio facilities should also
be kept in operation between Hawaii and the main-
land, and it is our understanding that the A.T. a
T. Company also has this intention. It is obvious
that having both types of facilities available and
operating will provide the very maximum degree of
reliability and security."
8. For the reasons set forth in its original statement,
Hawaiian believes that the trans-Pacific cable is essential to
provide the character of communication service to which the
people of Hawaii are entitled. In an effort to discharge its
public duty in this regard, Hawaiian will seek to acquire an
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ownership interest in such cable. In assuming such responsi-
bilities, it is essential that Hawaiian forecast as accurately
as possible its capital investments, revenues and expenses.
Under the orders now outstanding, Hawaiian believes that it
can, as required, make such forecast with reasonable accuracy.
The delay RCAC proposes would result in numerous uncertainties
and would be most undesirable from Hawaiianis standpoint.
WHEREFORE, Hawaiian respectfully requests that the
petitions for rehearing filed by RCAC and Clobe be denied, and
that Hawaiian be accorded such other and further relief as ap-
pears appropriate.
Respectfully submitted,
HAWAIIAN TELEPHONE COMPANY
By
Dated October 17, 1955
Wheat, May and Shannon
903 Commerce Building
1700 K Street
Washington 6, D. C.
Attorneys for
HAWAIIAN TELEPHONE COMPANY
Omar L. Crook
Its Attorney
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