nstallation unreasonable and unnecessary by equating the proposed vessel to a ng and a vessel in tow. It is to be noted that neither a tug under 500 gross tons or a vessel in tow are required to be fitted with a radio installation. But such n argument, with equal logic, could be applied to many oceangoing vessels now tted with radiotelegraph installations. Recognition of such contention would e contrary to the clear congressional intent of Title III, Part II of the Comnunications Act of 1934, as amended, that cargo ships of over 1600 gross tons avigated in the open sea, whether on coastwise or international voyages, should e equipped for participation in the radiotelegraph safety system and constitute pool of mutual assistance whose effectiveness would be in direct ratio to the jumber of vessels participating therein. 11. In the absence of a qualified radiotelegraph operator, provision of a radioelegraph auto alarm would appear to be of little value and, in some instances ould conceivably be undesirable. This is because an unskilled operator could hot distinguish between the auto alarm's response to a bona fide auto alarm signal ind the actuation of the auto alarm due to equipment failure, maladjustment or a simulated auto alarm signal. A false response of the auto alarm and a subsequent notification to a coast station obviously could lead to an unwarranted and undesirable mobilization of search and rescue forces. 12. Matson's observations concerning the manual watch by a radiotelegraph operator assume that only the minimum watch required by the rules would be maintained, i.e., for at least one-third of each day or portion of each day that the vessel is navigated in the open sea. A single weekly voyage is composed of a number of segments, portions of which fall on each day of the week. On four days of each week the vessel is at sea for periods in excess of 8 hours. It would appear that, at the master's discretion, a watch by operator could be maintained 44 of the 56.6 hours the vessel is scheduled to be at sea without exceeding a watch of 8 hours in the aggregate on any one day. In any event, a qualified operator would be available to deal with any radiotelegraph distress call, either upon being alerted by the auto alarm while off watch or received aurally while on watch. 13. Matson makes reference to the exemption granted the vessel Taku and the fact that its proposed vessel, like the Taku, will be able to maintain contact with coast stations at all points on its route. Assuming the latter to be true, Matson fails to take notice of the differences in the voyages of the two vessels. The Taku is navigated solely on inland waters at a maximum distance of six miles from the nearest land while the proposed vessel would be navigated in the open sea and would at times be approximately 35 miles from the nearest land. The voyages of the two vessels are so significantly different that the similarities of the two cases are not meaningful. 14. Finally, Matson refers to the matter of exemption of the vessel Raymond J. Bushey, and infers that its proposed vessel, unlike the Bushey, would be of such a design that its participation in the radiotelegraph safety system would be of minimal value. In the Bushey case, the Commission said: "A review of the legislative history in connection with the radiotelegraph provisions of Title III, Part II of the Communications Act of 1934 shows clear Congressional intent that ships of over 1600 gross tons navigating in the open sea, whether on coastwise voyages or on international voyages, should constitute a pool of mutual assistance whose effectiveness would be in direct ratio to the number of vessels participating therein. It was evident, however, that minimum uniformity in the radio equipment of these vessels was necessary if the plan of mutual assistance was to be carried into force. "Title III, Part II of the Communications Act expressly recognizes this prin∙iple of minimum equipment uniformity and specifies that vessels of 1,600 gross cons and over must be uniformly equipped for participation in a radiotelegraph safety system. The Commission has consistently applied this principle of minmum uniformity to all ships which are subject to the radiotelegraph safety system. Each such ship which is regularly navigated in the open sea is combelled to meet these requirements so long as circumstances indicate that its ›ermanent participation in summoning or rendering assistance would be of substantial value to the system and so long as inherent size, space, or design imitations did not render its participation peculiarly impracticable or impossible. The necessity for a principle of equal treatment for all such ships similarly situated is obvious in the absence of any method of determining in advance which ship in the system might at any given instant be required to give or receive assistance." This language applies equally well to Matson's proposed vessel. The fact that the proposed vessel is of a "revolutionary design for a special experimenta. purpose" does not appear to limit its usefulness as an element in the radiotelegraph safety system. Despite the alleged limitations of a small crew and a speed of eleven knots, Matson has not made a convincing showing that the proposed vessel is of such a design that an exemption from the radiotelegraph requirements is warranted. 15. Matson contends that its experimentation in automation should not be burdened by a requirement for installing and manning a radiotelegraph instalistion. The economic considerations are ever present, and the conditions in the instant case are no more persuasive than in previous cases where exemptions have been denied. 16. Accordingly, it is concluded that Matson has failed to show that the preposed vessel could not effectively participate in the established pool for the mutual safety of radiotelegraph equipped ships or that there are exceptional circumstances involved herein which would warrant a departure from the Commission's policy of adherence to the proven radiotelegraph safety system for cargo vessels over 1,600 gross tons navigated in the open seas. 17. It appears that applicant's case for exemption relates in large measure to economic factors such as the expense of employing a qualified radiotele graph operator, and is in reality a case for radiotelephony and against radiotelegraphy for the coastwise maritime radio safety system. If the Commission were to grant the exemption, the action would have to be based upon a finding for a radiotelephone safety system and against a radiotelegraph safety system. Such a finding, applied on a general basis, would be tantamount to an adminis trative reversal by the Commission of the legislative judgment expressed in Title III, Part II, vis., that in the absence of exceptional circumstances radiotelegraphy is the preferred and required mode of maritime safety communication for vessels of over 1,600 gross tons. 18. In view of the foregoing, it is ordered, That the Petition for Reconsideration filed by Matson Navigation Company is denied. FEDERAL COMMUNICATIONS COMMISSION, Adopted: June 5, 1963. Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. FCC 64-21 45239 IN THE MATTER OF APPLICATION FOR EXCEPTION FROM THE RADIOTELEGRAPH PROVISIONS OF TITLE III, PART II OF THE COMMUNICATIONS ACT OF 1934, As AMENDED, FILED ON BEHALF OF THE UNITED STATES CARGO SHIP ALASKA SPRUCE, 2447 GROSS TONS Appearances William F. Ragan, on behalf of J. J. Tennant Company; Maurice J. De Pont, on behalf of the Chief, Safety and Special Radio Services Bureau, Federal Communications Commission; Louis Steinberg, on behalf of the American Radio Association. (Docket No. 15182) DECISION By a Panel of the Commission: Commissioners Hyde (Panel Chairman), Cox and Loevigner. Preliminary Statement 1. This matter comes before the Commission on a petition for rehearing submitted by the applicant, J. J. Tennant Company, following the Commission's denial of petitioner's application for exemption of the petitioner's ship, Alaska 147 USC 5(d)(1). 2 Memorandum Opinion and Order, June 5, 1963 (FCC 63–521). pruce from the radiotelegraph requirements of 47 USC 351. The background f the matter is fully set forth in the cited Memorandum Opinion and Order and eed not, therefore, be repeated. Briefly stated, Alaska Spruce is required by w to carry certain radiotelegraph equipment and operators while navigating n the open sea. Petitioner had represented that, its traffic being Pacific coastvise and not more than 20 miles from land, requiring the prescribed equipment nd operators was unreasonable or unnecessary and it was therefore entitled to xemption under 47 USC 351(b). 2. The Commission designated the matter for oral argument before a panel of Commissioners. Oral argument was held on November 7. 1963. before Commisioners Hyde (Panel Chairman), Cox and Loevinger. Appearances were filed nd oral argument made by J. J. Tennant Company, Chief, Safety and Special Radio Services Bureau, and the American Radio Association. Supplementary riefs were filed by American Radio Association and J. J. Tennant Company. DISCUSSION 3. We have carefully reviewed the matters of record in this proceeding and are of the opinion that the relief requested should be denied. The statute maniests the intention of Congress that virtually all ships, such as petitioner's, of the tonnage and voyage pattern should carry such radiotelegraph equipment and operators, subject to exemption upon a proper showing. It is therefore clear hat the burden of justifying an exemption is on petitioner. 4. Petitioner's reasons are, in our opinion, entirely economic. He has claimed that his competitors do not, because of the type of seagoing equipment they use, have to carry such radiotelegraph apparatus or operators and hence their expenses are less, or, reciprocally that his are greater. But we do not believe that Congress, when it used the word "unreasonable" in the statute, was referring to economic burden or competitive advantage. On the contrary, all shipping could operate more cheaply with none of the many types of safety devices now used, but to state such a proposition as justification for eliminating their use is to refute it. 5. Petitioner claims that his radiotelephone equipment is more useful in the circumstances under which he operates. If this be so, it is in his interest to carry and operate the same voluntarily, but such use of radiotelephony cannot justify an exemption from the mandatory use of radiotelegraphy required by the statute. It was suggested in oral argument that radiotelephony has made great strides since the adoption of the pertinent portions of the statute and the mandate must be reconstrued in this light. If this be so (and we refrain from an opinion), Congress may wish to re-examine the statute. But the change sought, if it be on the basis of technical advances in radiotelephony, is of the broad scope which should be by legislation-not on a case-by-case series of exemptions. 6. Our allowances of previous exemptions were referred to in oral argument (Tr. 18, et seq). Such exemptions have been granted to vessels which performed very limited open sea voyages (New York City garbagedumping scow), were ill-adapted to rescue work (semi-permanently moored oil well drilling ships), or which could not reasonably carry the necessary radiotelegraph equipment (Great Lakes tanker with limited fair-weather operation in the Atlantic). Were we to adopt petitioner's reasoning, apart from arguments concerning his economic burden, we should find it difficult, if not impossible, to avoid granting such exemptions to all coastwise shipping, a virtual nullification of the statute pro tanto. We believe that if such a change is to be made, it should be by legislation-not our exemption process. Petitioner has failed to justify his request for an exemption. Accordingly, it is ordered, This 14th day of January, 1964, That (a) Motions to Correct Transcript filed by the parties herein Are Granted; and (b) That the Petition for Rehearing of J. J. Tennant Company, Is Denied. FEDERAL COMMUNICATIONS COMMISSION. Released: January 14, 1964. Order, October 3, 1963, FCC 63-892, 28 FR 10934. The T. J. Hooper (C.C.A.-2d 1932), 60 F. 2d 737. Motions to Correct Transcript have been filed by the Chief, Safety and Special Radio Services Bureau, J. J. Tennant Company, and the American Radio Association. 32-442-64 Mr. BARTLEY. Matson Navigation Co. filed for an exemption under section 352 (b) (2) of the Communications Act from the radiotelegraph requirements of title III, part II of the Communications Act, in behalf of a proposed U.S. cargo vessel to be operated in the Hawaiian interisland service. The Commission denied the application for exemption by report and order adopted March 6, 1963 (FCC 63–211). Thereafter, on June 5, 1963, it denied a petition for reconsideration of that report and order (FCC 63-519) and in so doing said: Such a finding (for a radiotelephone safety system and against a radiotelegraph safety system) applied on a general basis, would be tantamount to an administrative reversal by the Commission of the legislative judgment expressed in title III, part II, viz., that in the absence of exceptional circumstances radiotelegraphy is the preferred and required mode of maritime safety communication for vessels of over 1,600 gross tons. In 1936 the United States ratified the 1929 Safety of Life at Sea Convention, which established minimum standards for vessels on international voyages. Part II, title III of the Communications Act was first enacted in 1937 (Public Law 97, 75th Cong., 1st sess., 50 Stat. 192). The dominant congressional purpose behind this legislation was to promote to the highest level the safety of life and property on the high seas by enforcing certain requirements as to radio apparatus and radio operators. The effect of this legislation was to apply the same standards to all U.S. vessels over 1,600 gross tons with no distinction being made between coastwise and international voyages. (S. Rept. 196, 75th Cong., 1st sess., p. 2; H. Rept. 686, 75th Cong., 1st sess., pp. 2-3.) The main reason for congressional refusal to make a distinction between cargo vessels making coastwise voyages and international voyages was that radio telegraph would be necessary not only to enable the particular vessel to obtain assistance in case of emergency, but also to receive distress messages from, and to render assistance to, other vessels which carry radiotelegraph (see H. Rept. 686, 75th Cong., supra). This principle that all vessels over 1,600 gross tons should be uniformly equipped for participation in a radiotelegraph safety system has been generally applied by the Commission. As we said in the memorandum opinion and order released July 27, 1962, in the Bushey case: *** Each such ship which is regularly navigated in the open sea is compelled to meet these requirements so long as circumstances indicate that its permanent participation in summoning or rendering assistance would be of substantial value to the system and so long as inherent size, space, or design limitations did not render its participation peculiarly impracticable or impossible. The necessity for a principle of equal treatment for all such ships similarly situated is obvious in the absence of any method of determining in advance which ship in the system might at any given instant be required to give or receive assistance (FCC 62-821). It may be that developments in radiotelephone equipment and use techniques have altered safety communication requirements since adoption of title III, part II of the Communications Act. Radiotelephony is now recognized by the International Convention for the Safety of Life at Sea as an appropriate safety communication system for cargo ships of 500 to 1,600 gross tons when navigated on international voyages, and by title III, part II of the Communi Even tions Act for such ships when navigated in the open sea. reater recognition is accorded to maritime telephony by Canada, hich requires cargo ships of 500 to 5,000 gross tons to be fitted with vo 3-megacycle radiotelephone installations, capable of at least 50 atts antenna power, when such ships are navigated on any voyage, her than an international voyage, on the seacoasts of Canada. Cargo ips of 5,000 gross tons and upwards navigated on any voyage of not ore than 200 nautical miles from one place to another place on he seacoasts of Canada may elect to install either radiotelephone quipment or radiotelegraph equipment. Canadian rules appear to dicate also that despite the requirements of the Safety of Life at ea Convention, cargo ships of 1,600 to 5,000 gross tons engaged on ternational voyages are also given this option, provided they do not o more than 100 miles from the nearest land. While it may be that the strides made by radiotelephony warrant econsideration of communication safety requirements, particularly with respect to ships operating near the coast, such a basic change, e feel, should be by legislation rather than effectuated through adinistrative exemption to a clearly established congressional policy In the Matter of Alaska Spruce, Docket No. 15182, 36 FCC, pp. 2-63). In any event, the Commission recommends against the approach of these bills, limited as they are to ships operating in Hawaiian vaters, in the absence of an evaluation of the existence, extent, and ignificance of any differences between that area and other coastal reas. And if the policy is to be generally changed, its scope should nclude a consideration of operations in all our coastal waters and an nquiry as to the adequacy of radiotelephony for the safety of vessels engaged in coastwise voyages as well as the interrelationship, if any, of adiocommunications on such vessels and those on international voyages, which carry radiotelegraph, for safety at sea in general. Any action in this broader area should be undertaken only after a complete study of the matter, and the Commission recommends that inal action on H.R. 8508 and similar bills be withheld pending the outcome of such an overall study. If the Congress feels it is waranted, the Commission would be happy to cooperate fully in any congressional study of the matter, or to undertake such a study solely or in conjunction with other appropriate Government agencies. In the meantime, however, only those vessels which are able to make a proper showing under the provisions of section 352(b) of the act, would be exempted from the requirement of carrying radiotelegraph equipment and radiotelegraph operators and, as has been previously indicated, such exemptions are granted only under exceptional circumstances. The Budget Bureau advises, Mr. Chairman, that from the standpoint of the administration's program, there is no objection to the submission of this statement. Mr. ROGERS of Texas. Thank you, Commissioner Bartley, for a concise and excellent statement. Mr. Moss, do you have any questions? Mr. Moss. Not at the moment, Mr. Chairman. |