FC: History of radio regulation; scrutiny of elected officials

Declan McCullagh (declan@well.com)
Fri, 30 Jan 1998 18:31:25 -0800 (PST)

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

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

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?


---------- 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


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