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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]
>Originator: [email protected]
>Sender: [email protected]
>Precedence: bulk
>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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