1/6/05

It should come as no surprise that broadcasters have thoroughly hashed the question of the FCC's jurisdiction in the courts. The argument, in the context of unlicensed broadcasting, revolves around a single premise: the federal government is empowered to police all interstate activity while business within a state falls within the jurisdiction of the state. Broadcasters - especially microbroadcasters - have argued that if their radio signals do not cross state lines, they are not engaged in "interstate commerce" - and therefore don't need a license from the FCC.

This particular challenge to FCC authority started all the way back in 1928, when the license for a radio station in Homewood, Illinois owned and operated by the American Bond and Mortgage Company was set to expire. The company went to court seeking to affirm its right to continue broadcasting, arguing that since its signal did not travel outside Illinois the Federal Radio Commission had no power to license it anyway. District court judge James H. Wilkerson disagreed:

[T]he full control of Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. The execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter.¹

Thus where interstate and intrastate commerce may be perceived to coexist, federal authority dominates by default. American Bond's subsequent appeals failed.²

Then there was "The Voice of Labor." This unlicensed station was run by three men out of a hotel in Downtown Houston, Texas. In 1934 the FCC moved to silence the station with an injunction. The station operators argued that they were engaged in intrastate commerce. Even though this may have been true, the court reasoned the station still had the potential to interfere with the reception of other licensed stations broadcasting into Texas from elsewhere. The Voice of Labor's potential effect on licensees engaged in interstate commerce empowered the FRC to shut it down: “"That it is reasonable will be seen by reflecting that a sufficient number of unlicensed and unregulated intrastate radio broadcasting stations, such as is defendants, broadcasting on different frequencies in each community, could and would not only interfere with, but destroy, all interstate broadcasting."”³

In 1981, a criminal case involving a rogue CB broadcaster also invoked the intra/interstate jurisdictional challenge. He claimed that since the FCC never empirically proved that his overpowered transmissions never left his state, it could not invoke any authority vested in the concept of interstate commerce. The Tenth Circuit Court of Appeals thought otherwise: “"Requiring the prosecuting authorities to monitor defendant's signal from a point outside the state in order to sustain his conviction seems to us to impose a greater burden than the statute contemplates."”⁴

What about Eric Johnson's letter? The one on FCC letterhead, purportedly denying jurisdiction over "intrastate" broadcasting? Joe Ptak, a founder of Micro Kind Radio in San Marcos, Texas, cited a similar (perhaps the same) letter in his defense when the FCC went after him in 1998. The FCC noted that the document was a "form letter" sent out by a staffer who "misunderstood" the jurisdictional question and "answered inaccurately."⁵

Furthermore, the FCC's explanation was mailed out as a follow-up to the initial inquiry - the existence of which has been conveniently forgotten. This particular instance is akin to the Internal Revenue Service and its disclaimer that advice given by its staff over the phone or in writing cannot be construed as official IRS policy: the reasoning given is to avoid situations precisely like these.

Others have argued that there may still be life in this particular challenge, but their perspective rests on overturning decades of precedent which, valid or not, represents momentum few courts will even acknowledge, much less reconsider. There are also those who will simply deny the federal government authority on points of political principle: there is no remedy for disparate perceptions of reality, so I guess we'll just have to agree to disagree on this one.

None of this is meant to discourage challenging the authority of the FCC - it's offered in hopes of helping those who wish to represent the "public" in the "public interest, convenience, and necessity" do so in a more effective fashion.

Notes
1. United States v. American Bond & Mortgage Co. et al., 31 F.2d 448 (N.D. Illinois, E.D. 1929) at 455.

2. American Bond & Mortg. Co. v. United States, 52 F.2d 318 (7th Cir. 1931); reh’g denied, 52 F.2d 318 (7th Cir. 1931); cert. denied, 285 U.S. 538 (1932).

3. United States v. Gregg et. al., 5 F. Supp. 848 (S.D. Tex. 1934) at 857.

4. United States of America v. Clarence P. Brown, 661 F.2d 855 (10th Cir. 1981) at 856.

5. In re Joseph Frank Ptak, San Marcos, Texas, FCC 99-131, June 9, 1999.