                                                               February 14, 1978


78-9      MEMORANDUM OPINION FOR THE
          DEPUTY ASSISTANT DIRECTOR FOR
          LEGISLATIVE REFERENCE, OFFICE OF
          MANAGEMENT AND BUDGET

           Corporation for Public Broadcasting—
           Grants— Monitoring Administration of (47
           U.S.C. § 392)


   This memorandum is in response to your request for our opinion concerning
the question o f administration o f existing public educational television or radio
broadcasting facilities grants. The question has been raised in connection with
proposed legislation now being reviewed by your Office. The issue presented is
whether compliance with conditions contained in existing grants previously
awarded under the present law should be monitored in the future by the
Department o f Health, Education, and Welfare (HEW ), by the Corporation for
Public Broadcasting (CPB), or by some third agency such as the Department of
Justice.
   Under current law, if, within 10 years after completion of a project for which
a grant has been awarded, certain conditions no longer continue to be m et, the
 United States is entitled to recover a proportionate amount of the value of the
facilities, determined either pursuant to agreement as to that amount or by
judicial action (47 U .S.C . § 392(0)- Although this provision gives the G overn­
 ment a continuing right to seek to recover such amounts, as a practical matter,
unless the grantee voluntarily tenders an agreed-upon sum, recourse to a
judicial proceeding will be necessary. In future administration of existing
grants a key role will continue to be played by the agency charged with
monitoring the status o f grantees (currently HEW ), for only it will become
aware o f noncompliance with required conditions and be in a position to take
steps to recover funds due.
   It therefore appears that the potential for recapturing funds cannot realisti­
cally be regarded simply as property which can be treated without concern for
any trailing strings. The sort of administrative role necessarily required in these
circumstances clearly cannot be played by a litigating agency such as the
Department o f Justice. We question whether CPB should be called upon to

                                        39
assume authority to monitor these grants where the Corporation’s anticipated
role with respect to existing grants would be much the same as that currently
played by HEW . C PB ’s carefully preserved nongovernmental status might be
legally jeopardized by following so closely in the steps of a government
agency. W hether that step should be taken is, o f course, a question of policy as
to which we express no opinion.

                                                  L eon U lm an
                                       Deputy Assistant Attorney General
                                                     Office o f Legal Counsel




                                       40
