---------- Forwarded message ---------- Date: Fri, 30 Jan 1998 18:31:25 -0800 (PST) From: Declan McCullagh <declan@well.com> To: politech@vorlon.mit.edu Subject: History of radio regulation; scrutiny of elected officials Attached below are excerpts from two Supreme Court cases. The first, NBC v. U.S. (1943), I read this week for a communications law class I'm auditing. The portion I'll include here deals with the history of radio (and I'm aware that there are revisionist histories that appear to be more accurate, or at least tell more of the truth). But I couldn't help thinking of the domain name disputes while reading it. Excerpt from National Broadcasting Co. v. U.S. (1943) ...The number of stations multiplied so rapidly, however, that by November, 1925, there were almost 600 stations in the country, and there were 175 applications for new stations. Every channel in the standard broadcast band was, by that time, already occupied by at least one station, and many by several. The new stations could be accommodated only by extending the standard broadcast band, at the expense of the other types of services, or by imposing still greater limitations upon time and power. The National Radio Conference which met in November, 1925, opposed both of these methods and called upon Congress to remedy the situation through legislation. The Secretary of Commerce was powerless to deal with the situation. It had been held that he could not deny a license to an otherwise legally qualified applicant on the ground that the proposed station would interfere with existing private or Government stations. And on April 16, 1926, an Illinois district court held that the Secretary had no power to impose restrictions as to frequency, power, and hours of operation, and that a station's use of a frequency not assigned to it was not a violation of the Radio Act of 1912. This was followed on July 8, 1926, by an opinion of Acting Attorney General Donovan that the Secretary of Commerce had no power, under the Radio Act of 1912, to regulate the power, frequency or hours of operation of stations. The next day the Secretary of Commerce issued a statement abandoning all his efforts to regulate radio and urging that the stations undertake self-regulation. But the plea of the Secretary went unheeded. From, July, 1926, to February 23, 1927, when Congress enacted the Radio Act of 1927, 44 Stat. 1162, almost 200 new stations went on the air. These new stations used any frequencies they desired, regardless of the interference thereby caused to others. Existing stations changed to other frequencies and increased their power and hours of operation at will. The result was confusion and chaos. With everybody on the air, nobody could be heard. The situation became so intolerable that the President in his message of December 7, 1926, appealed to Congress to enact a comprehensive radio law... Which gave us the predecessor of today's FCC. The question, of course, is if the justification for the FCC was to eliminate chaos, why did the agency not just stop there? Why the indecency rules, must-carry regs, fairness doctrine, overseeing network-station relationships, and so on? -Declan ---------- Forwarded message ---------- Date: Fri, 30 Jan 1998 14:41:10 -0500 From: Marc Rotenberg <rotenberg@epic.org> To: Declan McCullagh <declan@well.com> Subject: From the Brandeis File Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizens. In a government of laws, existence of the government will be imperilled if it fails observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contageous. If the government becomes a lawbreaker; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Olmstead v. US (1928) You remember Brandeis. He's the person who argued for the *right* of privacy. Hardly a surprise, therefore, that he would be so outspoken on the abuse of government authority. Marc.