CHAPTER III

FEDERAL JURISDICTION

Sources of Federal Authority.

Several of the powers conferred upon Congress by the Constitution have been suggested as sources for Federal right of radio control. They include the power to make treaties with other nations and to carry them into effect by appropriate legislation; to establish post offices and post roads; to declare war; and to "regulate commerce with foreign nations and among the several states."1

There can be no question that legislation would be upheld if calculated to carry out the provisions of an existing treaty, and arguments can be made for the derivation of legislative control from the war power and authority over post roads. It hardly seems necessary, however, to invoke these provisions, for the commerce clause is ample for all purposes.

Transmission of Intelligence is Commerce.

The word "commerce" is necessarily of changing signifiIts meaning broadens as new methods of conducting business and intercourse come into being. The methods of today are far different from those known in Revolutionary times; yet the general language of the commerce clause includes them. Although steam vessels, railroads, telegraphs, telephones, radio, and airplanes are all of later birth, they are only instruments for the carrying on of commercial intercourse, the same in kind though greater in extent. The subject matter of commerce in Revolutionary days was some tangible thing; it meant 1 "Power of Congress over Radio Communication," American Bar Association Journal, January, 1925.

usually the transportation of merchandise or transit of persons from one place to another. Communication methods were crude. Judicial definitions accorded with the existing system and met all needs. But the chief pride of our law has been its elasticity, and courts had no difficulty in fitting it to new commercial conditions. They applied the commerce clause to transportation by steam vessels and railroads when these great agencies entered the transportation field.

As communication facilities developed and intercourse came to mean the exchange of intelligence as well as of material wares, and electricity began to play its part through the invention of the telegraph and the telephone, judicial decisions did not confine themselves to precedent but expanded to keep pace with progress. It was a long step from the idea that commerce was the actual transportation from one place to another of goods and merchandise to the conception that it embraced the electrical reproduction at one place of dots and dashes originated elsewhere. The courts recognized the difference, the Supreme Court saying1 that intercourse by telegraph

differs in material particulars from that portion of commerce with foreign countries and between the states which consists in the carriage of persons and the transportation and exchange of commodities, upon which we have been so often called upon to pass. It differs not only in the subjects which it transmits, but in the means of transmission. Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence.

The courts found no difficulty in holding that such communication constituted commerce. One of the earliest telegraph cases disposes of the question rather summarily as follows:

Is telegraphy any branch of commercial intercourse? To ask the question is to answer it. So interwoven has the custom of communica1 Western Union Telegraph Company v. Pendleton, 122 U. S. 347, 356. 2 Western Union Telegraph Company v. Atlantic and Pacific States Telegraph Company, 5 Nev. 102, 109.

tion by telegraph become with trade and traffic that to separate it without serious disturbance of vast trade relations and financial transactions would be a task as difficult as to cut the pound of flesh without a single drop of blood. It is the life and soul of civilized commercial transactions; many of the most important are daily ruled by telegraph. The banker, the merchant, the farmer, the broker-all traders depend upon the telegraph for speedy information and means of intercourse in their various businesses and traffic.

In the first case1 in which the Supreme Court discussed the commerce clause in connection with telegraphy, there appears the following language, almost in terms applicable to radio development:

The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances.

The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the habits of business and become one of the necessities of commerce.

It is now accepted law that the transmission of telegraph and telephone communications from one state to another constitutes interstate commerce and is subject to Federal legislation and control.2

Radio Point-to-point Transmission is Commerce.

The transmission of communications by radio from one individual to another, usually referred to as point-to-point service, has already reached large proportions. Circuits are operated between the United States and the principal countries of Europe, South and Central America, and across the Pacific to Hawaii and Asia. Although development has not been so extensive between points in the continental United States, and for certain technical and economic reasons perhaps will not be in the near future, yet there are over a hundred American concerns engaged in it, and it constitutes an important service between many communities. It can hardly be seriously contended that communication by this method is not commerce. not distinguishable in either legal or commercial effect from its wire competitors. Whether a wire is used to direct and guide the transmission or whether no physical connection is made is immaterial. The radio, wire telegraph, telephone, and cable companies are in the common business of conveying messages from one person to another by electrical processes and, legally, they are of identical character.

Marine Communication is Commerce.'

It is

The same conclusion must be reached as to marine communication, both the transmission of messages between ships at sea and between them and the shore. All vessels of importance are now radio equipped, and there are many shore stations which handle their messages. This communication is almost entirely telegraphic. It furnishes the only means of ship communication and is essentially commercial.

Broadcasting is Commerce.

Using the term "broadcasting" as meaning the telephonic transmission of programs to the listening public, it has been argued that the same principles do not apply and that this common and important form of radio transmission does not constitute "commerce." It is said that the broadcaster is not engaged in communicating messages from one person to another, but merely throws out a program which is carried in every direction to be heard by everyone who chances to receive it; that there is no contractual relation between the broadcaster and his listener, no reciprocity; that neither the receiver, nor ordinarily the sender, pays anything for the service, it being entirely voluntary and gratuitous. These differences exist to some extent and distinguish broadcasting in character from other communication services. Yet the variance is in detail, not in kind.

The characteristic feature of broadcasting is the conveying of the occurrences in one locality to the ears of listeners in other places. While other communication methods devote themselves to particularity and to the service of a known individual, broadcasting depends upon diffusion and service to the unknown many. Its value is in its generality. It picks up speech, music, and song, produced in a studio, hotel, theater, or public hall, by some person or by many, and carries it to the ears of a multitude of others far distant. It conveys the speech of one individual, or songs or music, to others who are waiting to hear it. Millions of people now expect and receive these radio messages day and night. They rely upon them for instruction, entertainment, and guidance in their business affairs. As a class, the broadcaster knows them and intentionally conveys communications to them. He establishes communication with them just as truly as though he set up a wire connection. The wire telephone transmits the voice of one known individual to another. The radio broadcaster does precisely the same, except that he has many persons at the receiving end. The communications do not differ in principle.

Not Necessary That Commerce be for Profit.

The argument that broadcasting is not commerce because not carried on for profit is equally unsound. The basis for it is largely untrue in fact. A large proportion of broadcasters now actually receive pay for their transmission under established tariffs, frequently several hundred dollars