Paralegal Guide:  Communication Law

In the Communications Act (CA) of 1934, Congress created the Federal Communications Commission (FCC) to regulate radio communications, which includes the transmission of signs, signals, writing, pictures and sounds, which was later extended to color television. This Act stood until its first overhaul in 1996. Communications is federally governed and regulated because it transcends state boundaries. States have been left with very little control, even in stations broadcasting within state boundaries. Additionally, states individually require films to be approved by a state board of censors.

The Communications Act and the FCC

This act served to establish the FCC along with rules and regulations for the industry that were intended to ensure the public interest under the assumption that it is a natural monopoly.

The five commissioners of the FCC represent an independent agency. They are appointed by the President, two Democrats, two Republicans and the Chairman. The Chairman is from the President’s party and has a vote on Commission items, but the Chair’s main function is to control the agenda and operations of the FCC. They have broad discretion in their general rule-making. The FCC notfies the public if they intend to adopt a new rule or set of rules and regulations. The public then has a certain amount of time to file comments if interested. This process often takes six to nine months to come to fruition even in the dispute-free cases. Licensing and adjudication are more strictly governed, in which activities it must act like a court of law. For example, when an application is filed for a radio license, the FCC must give public notice of the application so that other parties may file claims of support or opposition depending on how their own best interests might be affected. The losing party, after the proceeding determining granting or denial of the application, can file in a Federal appeals court to have the decision reconsidered. There are currently seven main bureaus that cover all areas of FCC jurisdiction:

• Enforcement Bureau
• Wireless Telecommunications Bureau
• Wireline Competition
• Media Bureau
• International Bureau
• Consumer and Government Affairs Bureau
• Public Safety and Homeland Security

The convergence of technologies throughout the last few decades of the 20th century had worked to confuse the regulatory structure of the FCC, making it less efficient. The Communications Act of 1996 was meant to deal with this problem, but it did not address another problem with the original act which served as the basis of many court cases. The CA designates the FCC’s jurisdiction as ‘interstate and foreign communications by wire or radio’ while specifically denying “jurisdiction with respect to intrastate communication service.” The problem here has been fairly obvious – the two are not always straightforward and it can be very difficult to sectionalize communications as such. This “reverse preemption” has ended in persistent battles where the FCC has attempted to regulate firms who want to adopt and use new technologies that may change the nature of its business from intrastate to interstate.

Spectrum Management

One of the main reasons for the creation of the FCC in 1934 was the need for spectrum management of the non-government earmarked sections of the radio spectrum. The predecessor to the FCC was the Federal Radio Commission, whose task it was to sort out the chaos and stop the common interference created by conflicting use of various frequencies. They did this by assigning frequencies, classifying stations and delineating service areas for all frequencies not under control of the federal government.

The 1934 CA transferred these duties to the FCC. The basic assumption underlying the close federal regulation of the radio spectrum was that it was a scarce resource and should be available and usable to all. Along with the Departments of State and Commerce, the FCC participates in the international process of determining how best to share this scarce resource with our surrounding borders without causing conflict and interference.

The next level is the national level. The FCC, in cooperation with federal spectrum managers, determines which frequencies are to be used by the federal government and which are available for all other uses. Then, block-by-block frequencies are allocated for specific services. From there, the FCC switches its decision-making mechanism and uses the application process along with market determination to allocate frequencies to individual users.

A Case Study: Free Radio Berkeley vs. The FCC

Pirates, or unlicensed broadcasters, are those who operate below the minimum 100-watt power requirement of the FCC. They are considered to be illegal. They’ve been around since the beginning of extensive radio regulation in the 1920’s, but few have directly challenged their illegal status and the FCC rules and regulations that determine that status. In what he refers to as “electronic civil disobedience” Stephen Dunifer began broadcasting from Free Radio Berkeley in 1993. It was only a 10-watt station, unlicensed, on 104.1 FM. Micro-broadcasting and micro radio are complex topics to research and investigate because there is much more to them than just the illegality of being unlicensed and/or operating under the minimum power. An investigator would often also have to take on issues of free speech as well as social, legal and technical issues. They are most often non-commercial and of a political/activist nature.

The micro broadcasting movement has gained in momentum. The idea is that, if they can flood the country with enough stations, the FCC will have to make a positive decision on their right to operate. Dunifer has been fined a total of $20,000 by the FCC, but that hasn’t stopped him from selling micro-broadcasting kits and teaching workshops on how to assemble and use them for other would-be radio pirates. He and others are represented by the Committee on Democratic Communication.

Further Research and Reading

Forum on Communications Law, part of the American Bar Association
The Federal Communications Commission and Official Documents
Federal Communications Law Journal by the Federal Communications Bar Association
The Communication Law Review, published by the Southern States Communication Association’s Freedom of Speech Division
The National Lawyers Guild ‘s Committee on Democratic Communication
The Human Rights Radio Network, operated by Mbanna Kantako, is a highly successful “pirate” radio station that has been on the air for years despite fines and warnings by the FCC, such as this one from the FCC Enforcement Bureau.