per hour of service, the rate varying with the importance of the station and the number of listeners reached. Broadcasting has come to be a recognized medium for advertising and publicity, particularly for those concerns whose activities spread over large areas or as to commodities which are in nation-wide use, or sought to be made such. The concern which wishes to place before the public its name or its wares employs a broadcasting station to send out whatever program or message it believes will accomplish that purpose. It pays for that service, just as it pays for magazine or other advertising and on much the same basis. This feature of radio business has become well established. It represents about the only method by which the owner of the station, whose investment is necessarily large, and operating costs equally so, can obtain a return or partly compensate himself for his outlay. It is therefore not surprising that it has had rapid development. There are even instances of church organizations, whose broadcasting may be assumed to be primarily with religious motive, which have entered this secular field so as to meet expenses.

There are broadcasters who do not sell service to others but reserve their stations for their own use. But their motive likewise is usually a financial one. Frequently such concerns are engaged in manufacturing receiving sets or other radio equipment and broadcast in order to stimulate sales, or the owner is otherwise interested in publicity for his own name and business. In any event, some element of financial advantage is always involved, though it be indirect. Two Federal courts have decided that broadcasting of this character is "for profit" within the meaning of the Copyright Act.1

There may be a few isolated instances, such as the operations of stations broadcasting religious services only, in which a direct financial element is not apparent, but they constitute a small fraction of the broadcasting whole, and are relatively of little consequence.

But even though the financial feature were lacking, and there were no element of gain or compensation, broadcasting would still be commerce. Commerce is frequently carried on with other motives. Neither the Interstate Commerce Acts, the Navigation Laws, the White Slave Act, nor the Dyer Act (relative to the transportation of stolen automobiles) makes financial gain an element in commerce. Examples might easily be multiplied.

The Attorney General of the United States1 has expressed the opinion that "whether the transmission is for profit is immaterial so far as the Commerce clause is concerned."

Amateur Communication.

Amateur stations outnumber all other classes in the United States and are scattered over the entire country. Their transmission is chiefly by the telegraphic code, and is carried on for pleasure and experimentation. Although these stations constitute in fact a communication system covering the United States, they are not used for gain. But nevertheless the sending of messages back and forth among the members of this class does constitute communication between them and, in spite of the lack of a financial element, would doubtless be considered commerce under the rules already discussed.

Power of Federal Regulation.

Assuming, therefore, that communication by radio is commerce, Congress has authority to regulate it whenever the transmission is interstate or foreign, or whenever, if wholly intrastate, it interferes with interstate or foreign communication, or the two are so commingled or interwoven that they cannot be separated for regulatory purposes.

Interstate Character.

Radio communication may constitute either domestic, interstate, or foreign commerce. A station on Long Island communicating with Europe is engaged in foreign commerce. When it transmits to San Francisco, its commerce is interstate. Its communications with ships within the territorial waters of New York or between other points in the same state is intrastate and with vessels on the high seas is foreign. Radio business may therefore fall within all classes, just as that of a railroad or telephone or telegraph company. Generally speaking, however, it may be said that all radio transmission has an interstate character. Even when intended as a communication between two points or persons in the same state, only the very exceptional signal confines itself within state boundaries. If it did so, its very presence might seriously interfere with interstate communications. The regulation of purely intrastate radio activity may therefore be essential to the orderly conduct of interstate communication.

Intermingling of State and Interstate Transmission.

When wholly intrastate, radio communication is subject to Federal control if it results in interference with the messages coming into the state or going from it which constitute interstate commerce. Perhaps the applicable rule can be expressed by saying that if the station is in fact an isolated unit, keeping its emanations within the state boundaries, separate and apart from the general mass of interstate communication, it remains free from Federal control. If its effects pass beyond the boundaries or enter the common radio highway within the state, they must be so conducted as not to cause disturbance of reception from outside, or they become subject to regulation to compel proper behavior, and in this connection it must be remembered that the interference range of a radio telephone is usually much greater than its communication range. It may, and frequently does cause a whistle, usually called a heterodyne, which enters the receiving set to the disturbance of the desired message far beyond the area in which its own communication is intelligible or audible. Whenever there is conflict between intrastate and interstate transmission, Federal authority is paramount. There is no absolute precedent for this conclusion, that is, no decision laying down such a rule as to radio, but the railroad cases furnish a complete analogy.

Railroad Analogy.

While, theoretically, the interstate and intrastate operations of railroads are separate and distinct and fall under either Federal or state jurisdiction, according to their character, the practical following of the rule has become more and more difficult as they have become increasingly complex. The policy of Congress and decisions in the courts have determined Federal supremacy and imposed Federal control on intrastate operations when necessary to protect and maintain the interstate system. The Supreme Court of the United States, in the Minnesota Rate Cases,1 declared the applicable rule, saying:

The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the Nation may deal with the internal concerns of the state, as such, but that 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. This conclusion necessarily results from the supremacy of the national power within its appointed sphere.

And again in Dayton-Goose Creek Railway v. United States, 2 the court said:

In solving the problem of maintaining the efficiency of an interstate commerce railway system which serves both the states and the Nation, Congress is dealing with a unit in which state and interstate operations are often inextricably commingled. When the adequate maintenance of interstate commerce involves and makes necessary on this account the incidental and partial control of intrastate commerce, the power of Congress to exercise such control has been clearly established.1

Application to Broadcasting.

One court has discussed this subject as follows:2 Undoubtedly, Congress will undertake to control the use of broadcasting stations, under its constitutional power, at some time in the future, and, in view of the fact that it has the power to regulate communication between states, it would probably, also, have the right to regulate broadcasting stations, even though not engaged in broadcasting from one state to another, on the ground that the general subject was one which came within the commerce clause of the Constitution. In order to make it effective, it necessarily follows that it would have the right to control others engaged in the same line of operation; namely, in broadcasting, if such broadcasting should result in an interference with those stations actually engaged in broadcasting from one state to another.

The Act of August 13, 1912.

By the Act to Regulate Radio Communication, Congress dealt with the possibility of interference between state and interstate operations, requiring a license not only for interstate transmission, but for the transmission of radiograms or signals, the effect of which extends beyond the jurisdiction or territory in which the same are made, or where interference would be caused thereby with the receipt of messages or signals from beyond the jurisdiction of the state or territory. It is noteworthy that so early in radio experience there was legislative recognition of interference effects extending beyond the communication area. same principle is observed in the Radio Act of 1927.

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