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Basis of FCC Jurisdiction [RANT]
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: [email protected]
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>From: "Michael D. Sullivan" <[email protected]>
>To: Multiple recipients of list <[email protected]>
>Subject: Re: Basis of FCC Jurisdiction (Republican rant)
>X-Comment: Requests (UNSUBSCRIBE/HELP) to: [email protected]
>MIME-Version: 1.0
>
>Steve Schear <[email protected]> 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 <[email protected]> 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 <[email protected]> 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.
>
>
>----------------------------------------------------------------------
>Michael D. Sullivan, Bethesda, Maryland, USA
>[email protected] / [email protected] / [email protected]
>----------------------------------------------------------------------
>
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