Last week I started a thread on the Telecom Regulation list. My intention was to introduce discussion of some circe-1780s Republican questioning, as opposed to the widely accepted Federalist. The most interesting composite result is below:
Date: Sat, 21 Sep 1996 22:08:03 -0500 Reply-To: telecomreg@relay.doit.wisc.edu Originator: telecomreg@relay.doit.wisc.edu Sender: telecomreg@relay.doit.wisc.edu Precedence: bulk From: "Michael D. Sullivan" <mds@access.digex.net> To: Multiple recipients of list <telecomreg@relay.doit.wisc.edu> Subject: Re: Basis of FCC Jurisdiction (Republican rant) X-Comment: Requests (UNSUBSCRIBE/HELP) to: listserver@relay.doit.wisc.edu MIME-Version: 1.0
Steve Schear <azur@netcom.com> wrote:
I've been wondering lately about the jurisdictional limits of the FCC vis-a-vis the Article(s) of the Constitution from which they derive their authority. My understanding is that the FCC is empowered under the Fed's interstate commerce clauses. If so, how valid is their jurisdiction over low power and/or millimeter wave transmissions. It seems a case can be made that such transmissions represent little or no possibility of interstate transmission.
To which Bob Jacobson <bob@worldesign.com> replied:
The FCC derives its authority by Congressional mandate, so the question is rightly posed as "Does Congress have rights to regulate local radio trans- missions?" Congress abrocated to itself the right to regulate all radio transmissions, on the grounds that any transmission might interfere with the transmissions of interstate broadcasters. Generally, this right has been upheld by the courts, although states have successfully challenged the absolute power of the FCC with regard to certain aspects of non-radio transmissions -- for example, telephone calls -- that do not cross state boundaries and even some that do. To my knowledge, no form of electronic transmission is invulnerable to some type of regulation, whether federal or state (including municipal regulation by cities and counties, creatures of the states). Of course, there are loopholes, as the Internet has amply demonstrated.
In further response, John Levin <jlevin@paonline.com> added:
This discussion is incorrect by omission. The reason that states have authority over intrastate telephone service is because Congress says they do. The Telecommunications Acts carve out areas of state and federal jurisdiction. The FCC, like any other agency, takes an expansive view of their authority and courts occasionally rein in such excursions after looking at their enabling statutes. The technical doctrine is 'federal preemption', and unless Congress expressly preempts the states, or the preemption is necessary to effectuate a national policy authorized by federal legislation, the states retain control of state activities. As to what constitutes 'interstate commerce' for the purposes of the U.S. Constitution, there are hundreds, if not thousands of court decisions on that topic. During most of this century, usually even a very slight impact on interstate commerce has been found to be sufficient for Congress to legislate. Those of you who plan on using 'states rights' as a basis for disobeying Federal laws or regulations should consult an attorney and get your affairs in order before you act.
Although nothing in the Communications Act of 1934 or it predecessor Radio Acts states so explictly, it is implicit that the Interstate Commerce Clause is the basis for the statute and for FCC radio licensing jurisdiction. That was undoubtedly one of the bases for earlier legislative and Commerce Department regulation of radio, along with providing for the national defense. Under the Commerce Clause and the Necessary and Proper Clause, Congress can assert jurisdiction over virtually anything affecting interstate commerce. This clearly underlies Section 301 of the Communications Act, which asserts federal jurisdiction and control over all interstate radio transmissions and requires FCC licensing for the same.
The Communications Act does not assert jurisdiction over, or require FCC licenses for, radio transmissions between two points in a single state (not including D.C.). In fact, this doesn't remove virtually anything from federal jurisdiction or licensing as a matter of law, because radio transmissions don't stop at any particular point, they merely attenuate as they continue to propagate onward ad infinitum. As a technical matter, a milliwatt-level millimeter-wave radio transmission from one end of a steel-encased underground chamber to a receiver at the other end propagates to points thousands of miles away, albeit at an undetectible level (i.e., waaaaay below the noise floor), and it therefore could be viewed as an interstate radio transmission. Practically, however, such transmissions stop at the steel shielding. The FCC, therefore, will be unable to document that there was an interstate radio transmission and would likely be unable to shut you down.
The FCC has adopted rules that permit unlicensed operation under common circumstances when there is unlikely to be any interstate effects. Part 15 sets forth power levels and other transmission parameters for certain frequency bands that do not require licensing. Although the jurisdictional basis for Part 15 has never been expressly stated, the FCC views such transmissions as not, in any practical sense, likely to interfere with licensed transmissions, and the unlicense use of spectrum is conditioned on not interfering.
One could argue that other low-power or physically confined radio transmissions are also unlikely to cross state lines as a practical matter, or to interfere with licensed transmissions, and are therefore beyond the FCC's jurisdiction. The FCC has not conceded its jurisdiction in such cases, however. There is currently litigation ongoing regarding a California (Berkeley, perhaps?) low-power FM station that did not obtain a license. It doesn't interfere, and it can't be received out-of-state. Can the FCC shut it down? Yet to be decided.
Steve Schear also wrote:
Another question has to do with spectrum ownership. Prior to the '34 Act who owned the spectrum. Was any compensation made for the taking?
To which Bob Jacobsen replied:
As to ownership of the spectrum, the spectrum still is owned by the people of the United States, held in public trust. So-called "sales" of spectrum are actually licenses to use various frequencies under different rules. Presumably Congress has the right to sell this "property" in the same way that it sells forests on public lands, but so far it has not done so. On the other hand, the federal government has exacted remarkable fees for certain licenses: PCS operators have already put up over $17 billion in fees for licenses auctioned by the FCC!
Actually, spectrum isn't "owned" by anyone, including the people of the United States. One can't own a physical dimension such as frequency, any more than distances, speeds, or colors. The federal government has asserted *control* over the *use* of spectrum, however, just as it and the states assert control over the use of particular speeds in particular locations (e.g., 55 or 65 mph on freeways). As Bob said, the right to use spectrum, within specifically defined geographic, frequency, power, and time limits, is conferred by licenses awarded by the FCC. These licenses, for a specified term, are sometimes given away to the first person who asks for them, sometimes awarded by hearing or lottery, or, more recently, sometimes awarded on the basis of the highest bid. The FCC isn't selling spectrum per se, but a license for the exclusive right to use particular spectrum under the defined terms of the license. This is very different from selling public land, but is somewhat like selling the right to harvest the trees (or mine the coal, or drill and pump the oil) from a piece of federal land for a certain number of years.
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