which its neighbors would be excluded and on which it could carry on its communications freely and without interruption or interference. The plan was adopted, and the Secretary of Commerce, following the decision of the Court of Appeals upholding his authority to do so, proceeded to allocate a wavelength to each broadcasting station and to stipulate it in the license. This procedure continued for several years. The broadcasting system of the United States was erected under it.

The decision of the Court of Appeals was accepted as a correct statement of the law, and indeed was the only judicial interpretation of it until 1926, when further litigation arose. A broadcasting station in Chicago had been assigned a certain wavelength, which was set out in its license, and its time of operation was limited to specified hours, one night a week. Its owner became dissatisfied with the license conditions and proceeded to operate upon a wavelength and at times other than stated in the license. Proceedings were then commenced by the United States to enforce the penalty provided in Section 1 of the act for operation in violation of that section. There was no dispute as to facts, the court stating in its opinion that it was agreed that the defendant "on the dates charged in the information, operated its station on a wavelength and at times which were not authorized."1

The opinion characterized the provisions of Sections 1 and 2 of the act as "general, indefinite, and ambiguous." It adopted the theory that the regulations which Congress itself inserted in Section 4 of the act were considered sufficient, that the Secretary was required to issue the license subject only to those regulations, and that Congress withheld from him the power to prescribe additional regulations. The court pointed out a lack of any prescribed legislative standard in accordance with which discretion on the part of the Secretary might be exercised, and intimated that power exercised in the absence of standard is 1 United States v. Zenith Radio Corporation, 12 Fed. (2d series) 614.

arbitrary, rather than discretionary, and that if so construed the law might be unconstitutional, saying that "Congress cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of facts upon which the law makes or intends to make its own action depend." The Court concluded that "under the rules applicable to criminal statutes, Sections 1 and 2 cannot be construed to cover the acts of the defendant upon which this prosecution is based."

The court made no reference to the earlier decision in the District of Columbia, although its conclusion is diametrically opposed to the opinion in that case.

A slight departure from the rule above set out is found in the case of Carmichael v. Anderson.1 The parties were owners of broadcasting stations in Missouri, one in Jefferson City and the other in Independence. Each was licensed and each had been assigned the same wavelength. The court states that "as a condition precedent to the granting of a license to plaintiff for the operation of his broadcasting station, the Secretary of Commerce required a schedule of hours to be agreed upon between the plaintiff and the state marketing commissioner and filed." An agreement on time division was made, and the controversy arose over an attempt by one station owner to enforce it as against the other who proposed to disregard it and to operate full time. In passing upon the question of Federal jurisdiction of the controversy, the court said:

The statute provides for the operation of said stations "under and in accordance with a license revocable for cause." While by Section 10101, U. S. Compiled Statutes, the Secretary of Commerce may be without power to impose restrictions other than those contained in the legislative act, yet he would undoubtedly have the right to grant his licenses with such restrictions as the parties interested might agree upon. Any controversy arising under such an arrangement would invoke an interpretation of the congressional act, and would become a matter of Federal judicial cognizance."

The correctness of this ruling seems at least doubtful. The authority of the Secretary of Commerce could come only from an Act of Congress. The language of the court that the Secretary "may be without power to impose restrictions other than those contained in the legislative act" was, except for the use of the subjunctive, in accord with the earlier decision. The addition that "he would undoubtedly have the right to grant his licenses with such restrictions as the parties interested might agree upon" was equivalent to saying that private individuals might confer upon the Secretary authority which he did not have by law. The true rule would seem to be that the Secretary either did or did not have the right to impose conditions, depending upon the correct construction of the statute, but that his power could not be increased or diminished by the wishes of any individuals or by what they might request him to do or agree that he should do. The law itself created, defined, and limited his authority. The agreement between the parties received no additional force from being included or recited in the license.

The conflict between the decisions in the Intercity and Zenith cases left the Secretary of Commerce without judicial guidance. The Illinois opinion, while not expressly criticizing the decision in the District of Columbia, nevertheless was sufficient to cause grave doubt as to the advisability of continuing to rely upon it as a correct construction of the law. The entire question was therefore referred to the Attorney General of the United States, who was requested to advise the Secretary of Commerce as to his duties and powers under the act.

Under date of July 8, 1926, the Attorney General stated his conclusions. He referred to the court decisions, without discussing them, and virtually adopted the conclusions of the United States District Court in the Zenith Case. The decision in Carmichael v. Anderson had not then been rendered. He reasoned that Congress itself provided on the face of the act whatever regulations it thought necessary and delegated no power to add to them. Upon the question of assignment of wavelengths, division of time, and limitation of power, after citing the regulatory features of Section 4, he held that Regulations 1 and 2 of Section 4 of the act constituted a "direct legislative regulation of the use of wavelengths" and "preclude the possibility of administrative discretion in the same field." He also held that the Secretary had "no general authority to fix the times at which broadcasting stations may operate" or to insert in the license any limitation as to the amount of energy to be used in carrying out the desired communications.

This construction of the statute was adopted by Judge Wilson, of the Circuit Court of Cook County, Illinois, who said:1

On July 8, 1926, Acting Attorney General Donovan rendered an opinion for the Department of Justice in Washington which, in effect, advised the Department of Commerce that, from his construction of the act, broadcasting stations coming within the prescribed band could not be regulated except for the purpose of designating normal wavelengths under Regulation 1, and that the act conferred no general authority to fix hours of operation or to limit power; that any station might with impunity operate at hours and with powers other than those fixed in its license, subject only to Regulations 12 and 13, and to the penalties against malicious interference contained in Section 5. While this opinion is not a judicial interpretation of the act, it would appear to this court that it is a correct interpretation, and, if true, there is nothing contained in the Act of Congress of August 13, 1912, that would provide against such use of wavelengths, except as contained in said enactment and as so interpreted.

Following this opinion, the Secretary ceased to assign wavelengths. Licenses issued thereafter merely recited on their face the wavelength designated by the applicant under the first regulation of Section 4. Stations were free to use whatever wavelengths they chose.

This situation resulted in increasing conflict and confusion. Interference between stations became common, causing disturbances both to the broadcasters and to the listeners.

Operators' Licenses.

Section 3 of the act required that the communication apparatus must at all times when in use be in the charge or under the supervision of a person licensed for that purpose by the Secretary of Commerce. As to stations on shipboard, this provision accorded with the international requirements of the London Convention.1 But the imposing of a license requirement on operators of all stations on land introduced an entirely new feature into Federal regulation of commerce. Other occupations affecting the conduct of interstate commerce, as a rule, have no such requirements, aviation, however, being another exception. Operators in the service of the wire telegraph, telephone, and cable companies need no Federal permission to engage in their calling, though their duties are precisely similar to those of the radio operators. It may be said that a higher degree of skill is necessary in radio and personnel should be more carefully selected, because unskilled operation might imperil life, through neglect of or interference with distress signals. But there are other occираtions, negligence in which is much more dangerous to life, the railroad engineer for instance, with which the Federal government does not interfere. Under the provision of the act, however, a license was required for the operator of every station engaged in radio communication, including broadcasting.

Regulations.

The regulations prescribed by Congress were contained in Section 4 of the act. They contained somewhat detailed provisions as to station operation, intended to keep down interference. Most of them were rendered obsolete by