A. P. v. Coffee-Pot

In 1933 the proprietors of KVOS, a 100-watt "coffeepot"* radio station in Bellingham, Wash., 70 miles from Seattle, had a fine idea. Why not start a "Newspaper of the Air" with three or more daily editions to keep KVOS fans up to the minute on world affairs? For advertising, there was the business of Bellingham merchants who would pay for interspersed announcements. For an editor, there was L. H. Darwin, who had once published a Bellingham paper. For news, there were the columns of the Bellingham Herald and the Seattle Times and Post-Intelligencer, all members of the far-flung Associated Press.

Soon Mr. Darwin and Rogan Jones, the stocky, breezy owner of KVOS, had agreed on a contract, arranged to split profits from the "Newspaper of the Air." Listeners liked the newscasting, the "fighting" editorials which the radio station directed against the Bellingham Herald and other political foes. First trouble for KVOS came when the A. P. asked for an injunction to prevent the broadcasters from appropriating its news as it appeared in member papers. Financial support came, to KVOS from the National Association of Broadcasters, representatives of a notoriously timid yet greedy industry, glad to find an obscure test case which might entitle them to millions of dollars worth of free news. First Federal District Court in Washington to examine the case figured out that KVOS was not "unfairly competing" with A. P., refused to grant the injunction. When a U. S. Circuit Court of Appeals reversed this decision, the National Association of Broadcasters decided it had had enough and withdrew. Carrying on by himself, sturdy Rogan Jones retained Lawyer William H. Pemberton of 'Olympia, carried the case to the U. S. Supreme Court when the A. P. asked for temporary and permanent injunction. For the A. P., counsel was handsome old John W Davis & staff.

Last week the A. P.'s case was tossed out of the Supreme Court, not on the ground that its news was not appropriated by the radio station, but because, in the opinion of Mr. Justice Roberts, his colleagues concurring unanimously, the A. P. failed to show more than $3,000 worth of damages, minimum amount with which a Federal Court may concern itself. Fascinated with the fact that A. P. is a non-profit-making organization, the justices decreed that the A. P. therefore could not "lose" the dues paid by its member papers if radio newscasting should put them out of business. Their share in the general A. P. expense, the Court reasoned, would simply be absorbed by the surviving A. P. papers.

Against such reasoning Lawyer Davis argued in vain that "the fact that a corporation does not make a profit does not mean that it cannot be damaged," and pointed out ineffectually that A. P.'s members "are its customers, and there would be no point in collecting profits from them in order to return the profits as dividends." The Court's action left still unsettled by the highest court in the country, how long broadcasting stations must wait before they can legitimately appropriate "news'" published by newspapers.

Next step of the A. P. will be considered by its directors at their meeting next month. Meanwhile KVOS, whose application for license renewal did not impress the Examiner of the Federal Communications Commission as "in the public interest, convenience and necessity," may itself be out of existence before the case ever comes up again.

* Radiomen's term for a station low in wattage, listening area and prestige.

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