III. Regulatory Geography
Radio regulation has often given little serious consideration to geography. A recent European Commission consultation put forward questions about harmonization, coordination, and the institutional framework for radio regulation. The consultation found:
It was generally considered that the distribution of radio spectrum to users should respond to local and national needs and would therefore best be carried out at national level. ….
….
Most respondents tend to agree that international decision-making on the harmonisation of radio spectrum should be the rule so as to avoid practical problems at the level of radio spectrum management, but sufficient scope should remain for radio spectrum policy to meet national and local needs.
….
The public consultation confirmed the objective to secure radio spectrum availability for pan-European radio systems, services, and equipment but this has to be balanced with national and local needs for radio spectrum.[1]
This consultation confirmed the importance of balancing regulation across the international, pan-European, national, and local levels. The international level generally means regulation developed in the International Telecommunication Union (ITU). The pan-European level has meant regulation developed through the European Conference of Postal and Telecommunications Administrations (CEPT). The reference to “local” seems new, but as the last sentence quoted above indicates, it is not clear that local (sub-national) governance has been seriously considered. More significantly, despite dramatic developments in radio technology and services, the consultation shows remarkable conservatism. The consultation shows no significant advocacy for change in regulatory geography.
Changes in regulatory geography could be highly beneficial. A Green Paper in 1994 urged that licenses for advanced mobile services be awarded in the European Community “in a coordinated manner and/or at Community level.”[2] The licenses, however, were awarded in an uncoordinated way at the national level.[3] Recent financial difficulties have lead to pressure for consolidation, as well as complaints about a particular license condition in Germany that makes mobile mergers costly.[4] Uniformity in regulation and ownership over a wide area can promote common user experiences and a greater scope of connectivity at lower cost. On the other hand, governance structures that promote wide-area uniformity can lead to less adaptation to local needs and less innovation in service offerings and business plans. These later factors seem increasingly important in light of pressing questions about mass-market demands for advanced mobile services.
In the 21’st century, short-range radio communications are likely to be very important. Home and neighborhood wireless networking has been attracting interest from a variety of community groups, small businesses, and large hardware and software providers.[5] Pico-radio networks, based on nodes no bigger than a shirt button and very short radio links, are an active area of research.[6] Many devices – refrigerators, toilets, cars, and perhaps children’s clothes – may include radio communications to exchange relevant information with a ubiquitous network. The success of particular applications in particular places will depend strongly on local social, physical, economic, and demographic factors.
U.S. experience points to the potential value of local differences in radio regulation. Federal spectrum auctions in the U.S. allowed for simultaneous, coordinated bids for radio rights across the country. Table 6 shows the total paid for radio rights in auctions that offered radio licenses partitioning all of the U.S. into services areas roughly the size of states or smaller. Federal revenue acquired from those auctions seems large enough to attract attention. For example, in Illinois and Virginia federal auction revenue was about 5% of state general fund revenues for fiscal year 2000 and greater than all state revenues from corporate taxation.[7] However, in the US, as in Europe, raising revenue is widely considered to be an inappropriate primary objective for radio policy.
|
Table 6 Federal Auction Revenue by U.S. State Geography
|
|||||
|
State/Territory |
Total Rev. (US$, mil.) |
Rev./Person (US$) |
State/Territory |
Total Rev. (US$, mil.) |
Rev./Person (US$) |
|
Alabama |
$350 |
$87 |
Nebraska |
$73 |
$46 |
|
Alaska |
$18 |
$33 |
Nevada |
$173 |
$144 |
|
Arizona |
$492 |
$134 |
New Hampshire |
$88 |
$80 |
|
Arkansas |
$94 |
$40 |
New Jersey |
$782 |
$101 |
|
California |
$3,391 |
$114 |
New Mexico |
$87 |
$58 |
|
Colorado |
$343 |
$104 |
New York |
$1,615 |
$90 |
|
Connecticut |
$309 |
$94 |
North Carolina |
$438 |
$66 |
|
Delaware |
$54 |
$82 |
North Dakota |
$22 |
$35 |
|
D.C. |
$80 |
$131 |
Ohio |
$768 |
$71 |
|
Florida |
$1,678 |
$113 |
Oklahoma |
$171 |
$54 |
|
Georgia |
$931 |
$144 |
Oregon |
$233 |
$82 |
|
Hawaii |
$135 |
$122 |
Pennsylvania |
$780 |
$66 |
|
Idaho |
$65 |
$65 |
Puerto Rico |
$356 |
$101 |
|
Illinois |
$1,457 |
$127 |
Rhode Island |
$82 |
$81 |
|
Indiana |
$547 |
$99 |
South Carolina |
$265 |
$76 |
|
Iowa |
$147 |
$53 |
South Dakota |
$31 |
$45 |
|
Kansas |
$113 |
$46 |
Tennessee |
$346 |
$71 |
|
Kentucky |
$227 |
$62 |
Texas |
$1,511 |
$89 |
|
Louisiana |
$380 |
$90 |
U.S. Virgin Is. |
$15 |
$148 |
|
Maine |
$64 |
$52 |
Utah |
$187 |
$109 |
|
Maryland |
$547 |
$114 |
Vermont |
$42 |
$75 |
|
Mass. |
$537 |
$89 |
Virginia |
$561 |
$91 |
|
Michigan |
$554 |
$60 |
Washington |
$577 |
$119 |
|
Minnesota |
$275 |
$63 |
West Virginia |
$76 |
$42 |
|
Mississippi |
$224 |
$87 |
Wisconsin |
$387 |
$79 |
|
Missouri |
$406 |
$79 |
Wyoming |
$30 |
$67 |
|
Montana |
$28 |
$35 |
|
|
|
|
Source: See Appendix A. Total revenue above is $23.1 billion; average revenue per person, $91; median revenue per person, $81. |
|||||
The more analytically important aspect of Table 6 is the range across states in revenue per person. These differences are not well explained by differences in the area of states. They relate to more complex aspects of economic and physical geography, such as income, industry types, land profiles, and weather. Using radio efficiently involves calculations of the opportunity cost of radio rights in trade-offs across various margins. Since the costs of radio rights vary by more than a factor of three across states, efficient radio regulation would involve significant regulatory variations across states.
Beneficial changes to regulatory geography depend on much broader considerations than just efficient radio use. The capabilities of real governing institutions of different geographic scope should be carefully considered. One should look for hidden capabilities that might be useful for promoting change and consider whether particular demands might usefully promote beneficial institutional growth.[8] Simple, clear, general rules can promote national uniformity and regulatory certainty. More complex, chaotic, and localized regulation can promote innovation, participation, and adaptability. Satisfaction with the status quo might not be sustainable, and less change now might mean more traumatic change latter. Moreover, as is regularly noted, communications plays an important part in shaping the democratic political process, culture, intellectual work, and personal relationships.[9] Given such scope for deliberation, any geographic scheme of governance might be successfully rationalized under particular conditions. This section offers, with faith, hope, charity, and some humor, not a particular program for reform but only some important history, facts, and insights for discussion.[10]
Geographic categories are very important for understanding realities of human life. Weather and proximity to water have an astonishingly large effect on broad patterns of activity. At least 52% of world GNP in 1995 was produced in areas with humid/temperate climates located within 100 km of navigable sea. This area category includes only 8% of the world’s inhabited land. GNP per capita in temperate areas within 100 km of navigable sea is more than six times greater than GNP per capita in tropical areas not within 100 km of navigable sea.[11] The significance of these geographic categories seems to relate to effects of climate on health and agricultural technology, and to the role of navigable water in facilitating intercourse of people, goods, and ideas.[12] Study of economic reality teaches that material circumstances depend strongly on geography.[13]
The importance of geography is also evident across 8,000 years of history in the area now called Japan. The most densely settled regions in the Jomon period (6,000 to 300 BCE) were also the most densely settled regions in 1998.[14] Consider as well the effects of U.S. bombing of Japan in World War II.[15] The nuclear bomb that the U.S. dropped on Hiroshima, Japan’s eighth largest city, killed 80,000 persons (20.8% of the city’s population) and destroyed two-thirds of the built up area of the city. Kyoto, Japan’s fifth largest city, was not bombed at all because of its cultural significance. The nuclear destruction of Hiroshima did not have an enduring effect on its attractiveness as a place to live. By 1975, the ratio of Hiroshima’ population to Kyoto’s was about the same as it was before the bombing.[16] The relative attractiveness of places to persons is a remarkably stable aspect of life.
Personal experiences of planes, trains, phones, the Internet, and other technologies, which didn’t exist before, tend to foster a consensus that geography matters much less now than it did five years ago, or perhaps fifty years ago, or maybe two centuries ago. But reality is not always what most persons perceive it to be. Ultra-wideband communication between persons – meaning face-to-face or closer mutual physical presence in communication – is probably more important than any other means of communication even in materially wealthy groups of highly alienated and abstracted persons.[17] Wide-ranging studies of common property regimes show that local knowledge, local boundaries, and local collective action play an important role in good governance, as does respect for the rights of persons to increase their subjectivity by creating and sustaining local governing institutions.[18] Moreover, much current governing capability resides in institutions that have a strong geographic orientation.[19] Some might find fantasies about transcending body, place, or history inspiring or therapeutic.[20] But in policy deliberations and decisions, geographic considerations should play a major role.
B. The US: More Centralized than Europe
Europe and the United States have significantly different geographic configurations of radio regulation. Early radio use was primarily for maritime communication.[21] Maritime issues have long concerned mutually recognized sovereign states. Such states worked out with each other early radio regulation.[22] Radio regulation in Europe developed through regional institutions using traditional inter-state mechanisms. In contrast, within the US, a single federal government acts as the sole regulatory authority. Radio regulation thus has been more centralized in the U.S. than in Europe.
Different federal institutions in the U.S. have historically set out national regulatory schemes. To cope with interference among radio stations in the late 1920s, the Federal Radio Commission (FRC) established a comprehensive national plan that forced several hundred stations off the air.[23] Congress required in 1928, “as nearly as possible,” an equal allocation of licenses among five geographic zones; among the states in a zone, licenses were to be allocated according to population.[24] The FCC, the successor to the FRC, established a comprehensive scheme for assigning television licenses to cities in 1952.[25] All radio use in the U.S. is subject to FCC licensing, and the FCC regulates radio under federal law.
In response to similar problems, European states created new regional institutions much less authoritative than the FRC and FCC. In 1925, European states formed the International Broadcasting Union (U.I.R) to help address interference problems. The U.I.R. and successor organizations have gathered facts, provided technical support, and helped to organize regional conferences and agreements. Negotiations have been continual on a wide range of issues. Agreements are specific, narrow, and need quasi-unanimity.[26] Interference problems are often not eliminated. In Europe in 1929, of 209 radio stations operating, 72 were not observing the agreed frequency plan.[27] In 1967, of 537 medium and long-wave radio stations in operation, 314 were not operating in accordance with the agreed frequency plan. Luxembourg has been a particularly egregious case. It has operated powerful radio and television stations transmitting programs in French, Dutch, German, and English to populations beyond its borders.[28] Europe has not been able to establish and enforce regional plans for radio use as successfully as the U.S. has.
In addition, a large category of radio uses in Europe fall outside the most developed framework for European regional radio regulation. Under international radio regulations, radio uses that are not “capable of causing harmful interference to the services rendered by the stations of another country” are not subject to international radio regulations.[29] The inter-state development of European radio regulation thus gives national regulators in Europe considerable regulatory freedom. Nonetheless, regulation of many local radio uses has been effectively coordinated across Europe.[30]
Whether the more centralized U.S. radio regulation or the less centralized European approach would better serve the public interest should be considered. Certainly some aspects of European radio and television, such as the British Broadcasting Corporation, are highly respected worldwide. Europe also has been generally regarded as the leader in the development of mobile telephony. On the other hand, the U.S. has developed vibrant local, private radio and television broadcasters, a strong independent content-creation industry, and considerable technological dynamism in advanced wireless services. The issue is not whether the U.S. should be like Europe, or Europe like the US, or a third area like one or the other. The value of the contrast is to point to relevant facts and institutional possibilities that might stimulate more fruitful deliberation about regulatory geography.
C. Barren Deliberation in the US
The U.S. provides a case study in deliberation that has failed to engender, with respect to regulatory geography, serious consideration of important facts, possibilities, and consequences. About 1927, when the Federal Radio Commission was created, U.S. legal scholarship dismissed all geographic boundaries in radio regulation (but one, usually) with appeals to obvious scientific and practical concerns:
In the present situation, unity of control is indispensible. Wave lengths must not conflict.…National and uniform rules are necessary.[31]
Radio communication cannot be confined by artificial state boundaries. It is essentially interstate in scope and character, broadcasting stations being so constructed that purely intrastate service is not only impracticable but all but impossible.[32]
the practical advantages not to say necessity of some centralized control is apparent. … The very nature of the scientific phenomenon made use of in radio communications demands centralized regulation as a condition of its advantageous exploitation.[33]
That the federal government must control the broadcasting situation is generally admitted. The tremendous present importance and future possibilities of radio, the limitations upon the number of persons who may broadcast simultaneously without causing a chaos of interference, and the fact that radio waves are not confined within the bounds of a single state or nation, make obvious the necessity of unified federal control.[34]
If the air is to be used successfully by radio, it must be on the basis of a world utility, regulated by a world public service commission through agreement of the governments. …it is hard to image a station that will not be strong enough to send a message over the boundary of a particular state.[35]
This legal scholarship largely ignored amateur radio, it lacked insight into the subsequent trajectory of radio technology and radio uses (think, for example, of microwave ovens and garage door openers), and it failed to appreciate adequately then developing European examples of governance.[36] It foreclosed debate about regulatory geography with vague appeals to necessary implications of specialized, extra-legal knowledge.
Early U.S. radio law formally limited the scope of federal regulation. The first sentence of the Radio Act of 1912 specified:
That a person, company, or corporation within the jurisdiction of the United States shall not use or operate any apparatus for radio communication as a means of commercial intercourse among the several States, or with foreign nations, or upon any vessel of the United States engaged in interstate or foreign commerce, or for the transmission of radiograms or signals the effect of which extends beyond the jurisdiction of the State 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 said State or Territory, except under and in accordance with a license, revocable for cause, in that behalf granted by the Secretary of Commerce and Labor upon application therefore; but nothing in this Act shall be construed to apply to the transmission and exchange of radiograms or signals between points situated in the same State: Provided, That the effect thereof shall not extend beyond the jurisdiction of the said State or interfere with the reception of radiograms or signals from beyond said jurisdiction;[37]
The contrast between this sentence, and an obvious, much simpler one, indicates at least a perceived need to describe limits on the scope of the law.[38] Even to a politically and rhetorically sophisticated person of that time, the natural sense of this sentence would have excluded weak radio emissions unrelated to commercial activity and not generally understood as communication, radiograms, or signals. Radio emissions that a home electrical generator might incidentally create are an example of such an exclusion. Many persons probably would have regarded the plain meaning of the sentence to imply additional exclusions as well.
The distinction between interstate radio communications and intrastate radio communications had little practical significance for early radio. Early radio uses – maritime communication, military communication, and “wireless telegraphy” – were closely associated with federal power. Private, non-commercial (amateur) radio users were interested in radio technology.[39] Since the ability to communicate over long distances was central to the perceived technological wonder of radio, only intrastate radio use was not an interesting possibility for amateurs. Moreover, influential figures in amateur radio strongly supported the Radio Act of 1912. The opportunity to get a federal license was hailed as a great victory for amateurs.[40] By the mid 1920s, most persons associated radio with AM radio broadcasting. Most AM radio broadcasts in the 1920s covered multi-state areas. Few persons in the 1920s cared about intrastate radio communications.
The Radio Act of 1912 was implemented in accordance with this predominate balance of interests. In an Annual Report submitted on November 13, 1912 to the Secretary of Commerce and Labor, the Commissioner of Navigation began discussion of the new radio act by explaining forthrightly what it meant:
In brief it [The Radio Act of 1912] prescribes that all apparatus and operators for radio communication within the jurisdiction of the United States (except Government stations and operators and those in the Philippines) shall be licensed by the Secretary of Commerce and Labor.[41]
The implementing regulations themselves were more legally fastidious. These regulations observed that the Act of 1912 limited federal authority to require licenses. The limit was recognized with a one-sentence regulatory provision:
The owner or operator of any apparatus who may be in doubt
whether his apparatus, under [the first paragraph of the Radio Act of 1912], is exempt from license may write the facts to the Commissioner of Navigation, Department of Commerce and Labor, Washington, D. C., before applying for a license.[42]
Less than a year later this issue of statutory construction and federal authority had devolved to a lower level of government:
The owner or operator of any apparatus who may be in doubt whether his apparatus, under this paragraph, is exempt from license may write the facts to the radio inspector for his district before applying for a license.[43]
According to a scholarly article published in 1928, the Secretary of Commerce required all stations to be licensed.[44] The Radio Act of 1912 produced in implementation little deliberation about regulatory geography.
The Radio Act of 1927 did not significantly change the statutory description of regulatory geography. The geographic scope of regulation stated in the Radio Act of 1912 was more compactly stated in the introductory phrase of the Radio Act of 1927:
…this Act is intended to regulate all forms of interstate and foreign radio transmissions and communications within the United States, its Territories and possessions; to maintain the control of the United States over all the channels of interstate and foreign radio transmission;
The Radio Act of 1927 included a qualified enumeration of powers with a qualified statement about preventing interference:
Sec. 4. Except as otherwise provided in this Act, the commission, from time to time, as public convenience, interest, or necessity requires, shall—
(a)…
(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and carry out the provisions of this Act…
…
(k)…
Most significantly, text in the first paragraph of the Radio Act of 1927 merely transformed the 1912 Act’s stated limit on authority into an affirmative enumeration of authority:
…[a federal license is needed to] use or operate any apparatus for the transmission of energy or communications or signals by radio (a) from one place in any Territory or possession of the United States, or from the District of Columbia to another place in the same Territory, possession or District; or (b) from any State, Territory, or possession of the United States, or from the District of Columbia to any other State, Territory, or Possession of the United States; or (c) from any place in any State, Territory, or possession of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State; (e) upon any vessel of the United States; or (f) upon any aircraft or other mobile stations within the United States, [45]
To a sophisticated legal scholar, and probably also to some legislators, this statement implied in 1927 a broader scope for regulation than the same statement implied in 1912.[46] But to the typical U.S. voter in 1912 and in 1927, the plain meaning of the words most probably would be the same.
In Congressional testimony and deliberation preceding the Communications Act of 1934, state representatives showed little interest in radio services then extant. State regulators cared most about the kind of regulation that was most familiar. State commissions focused on rate cases. Most persons in the early 1930s understood radio to be freely available AM broadcasts. As the General Solicitor for the National Association of Railroad and Utilities Commissioners (NARUC) explained in 1934 to the House Committee on Interstate and Foreign Commerce:
The particular interest of the State commissions is in the wire companies. Radio may become important to them from the point of view of regulation as the uses of radio increase. State representatives do not wish to surrender the future as to that industry, although the present prospect is that efficient Federal regulation will obviate occasion for State regulation, unless State regulation of intrastate rates shall some time become necessary. At present Federal regulation meets the need in the radio field.[47]
Jurisdictional distinctions in radio regulation, distinctions with great significance for railroad and telephone regulation, thus attracted little deliberation.[48]
The statutory limits on federal radio regulation enacted in the Communications Act of 1934 duplicate with further emphasis those in the Radio Act of 1927. The first section of the Communications Act of 1934 established the FCC to regulate “interstate and foreign commerce in communication by wire and radio.” Section 2(b) stated:
Subject to the provisions of section 301, nothing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communications service of any carrier…[49]
Section 301 contained the words of the enumeration of authority in the first paragraph of the Act of 1927, with only small changes concerning aircraft and mobile stations. Section 303 enumerated general powers, with the same qualifying heading as Sec. 4 of the Act of 1927, and §303(f) included the exact text of Sec. 4(f) of the Act of 1927. General powers enumerated in §303 included additional powers not included in Sec. 4 of the Act of 1927, but these additional §303 powers do not relate to the geographic scope of radio regulation. Thus the Communications Act of 1934 provided no more textual clarity about the scope of federal radio regulation than did the Radio Act of 1927, or the Radio Act of 1912.
U.S. courts did little to encourage deliberation about the geographic division of power in radio regulation. As Appendix B discusses, by 1928 several federal district court decisions stated that all radio communications are interstate. These decisions obliterated the distinction between interstate and intrastate radio. Moreover, these decisions ruled that federal regulation of all radio communications is constitutional under the Commerce Clause of the U.S. Constitution. Subsequent decisions of the DC Circuit and the U.S. Supreme Court followed the decisions of the district courts. Widely cited cases in these higher courts seemed to have relied essentially on dicta in earlier decisions, and the higher courts provided additional dicta on their own initiative. Qualifying language disappeared over time. By the end of World War II, courts seemed reluctant to examine carefully past precedent and the changing nature of radio communications. Moreover, developments in Commerce Clause law suggested that courts could not use that clause to provide judicial review of federal legislation concerning economic matters. Despite the great significance of communications to personal life, public life, and democratic deliberation, federal regulation of radio communication devices has been considered an “economic” or “technical” matter.[50]
Further legislative activity after World War II seems to have been directed towards limiting the possibility of significant deliberation about the scope of federal radio regulation. In 1968, the Communications Act was amended to include a new §302. Section 302(a) stated:
The Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications. Such regulations shall be applicable to the manufacture, import, sale, offer for sale, shipment, or use of such devices.[51]
The text of §302(a) does not clearly indicate whether §302(a) is subject to limits stated elsewhere in the Communications Act. However, §2(b) of the Communications Act makes clear that §302(a) is subject to the provisions of §301 and should not be “construed to apply or to give the Commission jurisdiction with respect to” broad areas of intrastate radio communications.[52]
Legislative history has created some confusion about the statutory scope of radio regulation. With respect to the 1968 Communications Act amendment establishing a new §302, the Senate Report on the enacting bill stated:
The Federal Communications Commission presently has authority under section 301 of the Communications Act to prohibit the use of equipment or apparatus which causes interference to radio communications and, under section 303(f), to prescribe regulations to prevent interference between stations. Pursuant to this authority the Commission has established technical standards applicable to the use of various radiation devices. At the outset it should be emphasized, therefore, that this legislation is not primarily designed to empower the Commission to promulgate stricter technical standards with respect to radiation devices but to enable it to make these standards applicable to the manufacturers of such devices.[53]
The legislative intent apparently was not to expand FCC concerns, but to give the FCC an additional regulatory tool for addressing concerns already within the scope of the Communications Act.
One might further consider, not the scope of the Communications Act, but what legislators thought was the scope of the Communications Act.[54] The 1968 Senate Report on §302 noted:
An important example of interference to radio communications occurred in December 1965 at the time of the Gemini 7 space flight. The U.S. Government went into court and received a temporary restraining order against a manufacturing company in Corpus Christi, Tex., on the grounds that certain equipment at the plant, including the ignition system of a winch truck used for lifting steel, was interfering with the communications between a tracking station at Corpus Christi and the Gemini 7 spacecraft.[55]
It seems implausible that legislators believed that the Communications Act gave the FCC authority to license the use and operation of winch trucks because they generate radio frequency energy.[56] On the other hand, legislators seem to have believed that the FCC had authority to regulate many types of communication, including local public safety communications as well as extra-earthly communications.[57]
Additional legislative history has been influential, but it does not seem to have much deliberative legitimacy. The Communications Amendment Act of 1982 was a collection of unrelated provisions, one of which amended §302(a) to include after the words “make reasonable regulations” an additional clause:
(2) establishing minimum performance standards for home electronic equipment to reduce their susceptibility to interference from radio frequency energy.[58]
This amendment gives the FCC authority over a certain class of equipment that might operate poorly due to reception of radio frequency energy. Of great significance has been the Conference Report’s statement associated with that amendment:
The conference substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI [radio frequency interference]. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The conferees believe that radio transmitter operators should not be subject to fines, forfeitures or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Rather, the conferees intend that regulation of RFI phenomena shall be imposed only by the Commission.[59]
This statement has been cited repeatedly, and rather loosely, in FCC orders, FCC letters, court cases, on an influential web site, and in the most comprehensive recent article on jurisdiction in radio regulation.[60] Note, however, that the statement goes far beyond clarifying the text of the statutory amendment associated with it. Moreover, the Conference met, wrote its report, and the report and the law were passed, all in one day. The law passed on a voice vote that dispensed with reading the Conference Report.[61] While the Conference Report’s statement is more closely related to §302(a)(1), it seems not to provide a correct description of the legislative intent in establishing that provision. In any case, surely legislative history from 1982 is weak evidence for legislative intent in 1968.
A few small edits buried in the middle of the Communications Amendment Act of 1982 made significant changes to statutory language concerning regulatory geography. First, the purpose of federal radio regulation in the introductory clause of §301 was expanded. The phrase “to maintain the control of the United States over all the channels of interstate and foreign radio transmission” became “to maintain the control of the United States over all the channels of radio transmission” [emphasis added].[62] Second, the clause describing jurisdictionally distinctive places, §301(a), was transformed into a clause describing every place. In particular, “from one place in any Territory or possession of the United States or in the District of Columbia to another place in the same Territory, possession, or District” became “from one place in any State, Territory or possession of the United States or in the District of Columbia to another place in the same State, Territory, possession, or District” [emphasis added].[63] These edits thus provided much stronger statutory support for federal regulation of intrastate radio communications.
Many members of Congress may have been unaware of the formal significance of these changes. The amendments were passed as a few lines of edits, not understandable on their own, placed in the middle of a law spanning thirteen pages and a wide variety of concerns.[64] Within the Communications Act as a whole, the edits make §301(d) redundant and heighten the contrast between the introductory clause of §301 and phrases in §1 and §2(a).[65] The Conference Report described these changes as helping to avoid wasteful proceedings when the FCC prosecutes Citizens Band radio operators transmitting in violation of FCC rules. The Conference Report also stated that the amendments make §301 “consistent with judicial decisions holding that all radio signals are interstate by their very nature.”[66]
Congress itself had little time to ponder the significance of these amendments. The Communications Amendments Act of 1982 was introduced in the Senate on August 18, 1982 as a substitute for all but the title of a much different House bill. There was unanimous consent to dispense with reading the bill, and the Senate passed it straight away.[67] On August 19, the House requested a conference, the conference met, agreed to minor changes in the Senate bill, reported to both chambers, and both chambers agreed to the conference report. In short, legislation significantly changing the statutory basis for regulatory geography was introduced and passed in two days, with no deliberation in the legislature.[68]
Eventually federal legislation preempted even the radio issues that most interested state regulators. The federal statutory basis for authority over intrastate radio services was strengthened in 1982, as described above. In 1983, cellular telephony was offered to customers in Chicago. Over the next ten years, some states regulated some cellular phone rates. Then the Omnibus Budget Reconciliation Act of 1993 preempted, with little fanfare, state regulation of rates and entry for commercial mobile services.[69] Preempting state regulation of rates and entry for commercial mobile radio may have been a sound regulatory choice. The point is that it was relatively easy to do. State regulators in 1934 did not want to surrender their voice about governance of radio communications. But over time the natural functioning of the national political process seems to have foreclosed much needed deliberation about regulatory geography.
The tension between real needs and the deliberative status of federal radio regulation is evident in recent legislation. On November 22, 2000, a federal law authorized state and local governments to enact laws prohibiting violations of FCC rules governing interference from Citizens Band radio. The authorization was carefully limited to specific FCC regulations pertaining to Citizens Band radio. Services that the FCC licenses under §301 were explicitly privileged against sub-national regulation. The FCC was authorized to hear appeals of sub-national government’s actions. In addition, the law declared:
Nothing in this subsection shall be construed to diminish or otherwise affect the jurisdiction of the Commission under this section over devices capable of interfering with radio communication.[70]
Overall, the legislation illustrates the practical importance of sub-national regulation. It also shows the national political concern that such regulation not have any legal significance for federal jurisdiction.
Concern over a possible reduction in federal jurisdiction largely shaped the legislative process. On Aug. 2, 1996, a bill was proposed in the Senate to give sub-national governments police powers to resolve interference relating to CB radio. The bill gave FCC concurrent jurisdiction over such issues and explicitly reserved the FCC’s exclusive jurisdiction over radio interference falling outside the scope of the bill.[71] That bill was redrafted to retain and emphasize FCC authority over all radio interference. The “non diminish” clause quoted above was added. This new bill was proposed in the Senate on Apr. 17, 1997.[72] A bill introduced in the House on June 24, 1999, was similar to the Senate bill from 1997. The House bill included additional minor edits that emphasized FCC authority.[73] It also included a new sub-section requiring “probable cause” in state or local enforcement action against Citizens Band radio equipment aboard commercial motor vehicles.[74] The bill that finally passed the Senate (Oct. 31, 2000) and the House (Nov. 13, 2000) included further minor edits that again emphasized FCC authority in regulating radio interference.[75] Thus the national political process produced more than four years of deliberation about a possible, small reduction in federal jurisdiction over a particular, relatively unimportant radio use.
U.S. experience highlights significant deliberative failure in the national political process. The weak policy, statutory, and constitutional basis for federal control over all radio use has not been considered in an open, substantive way. Regulatory geography for AM radio broadcasting in the late 1920s and early 1930s probably didn’t matter much relative to the political, economic, and social problems of that time. But radio communications is much more important to life in the 21’st century. Getting better regulation requires seeking truth and sincerely evaluating current beliefs.[76] With respect to regulatory geography, U.S. experience thus far shows little evidence of these crucial aspects of policy deliberation.
D. Not Whether But Where to Set Boundaries
Private, area-based regulation of radio rights provides another perspective on possibilities for regulatory geography. Both Australia and the U.S. have auctioned rights to regulate privately radio use in areas defined by federal (public) regulation. Study of the boundaries defined for these auctions provides considerable insight into the actual considerations that have determined regulatory geography. The possibilities and benefits that private area-based regulations highlight are possibilities and benefits that should also be considered in determining the geography of public regulation.
To define area-based licenses, the Australian Communications Authority (ACA), a federal agency, delineated the Australian Spectrum Map Grid. This grid consists of 21,998 “squares” of the following sizes:[77]
…5 minutes of arc (approximately 9 kilometres) on the eastern seaboard and in Adelaide, Perth and Darwin, 1 degree of arc (approximately 100 kilometres) in regional Australia and 3 degrees of arc (approximately 400 kilometres in remote Australia.[78]
The Australian Spectrum Map Grid is a geographic formalism that separates boundaries in radio regulation from all other geographic boundaries. Along with the specification of minimum bandwidth within a particular frequency range, this grid defines standard trading units (STUs). Trading in radio rights can occur only in whole STUs. Private regulation of radio rights within STUs is subject to publicly regulated STU boundary conditions where different right holders share a common STU boundary. These conditions include limits on out-of-area power emissions.[79] The parameters of these regulations are uniform throughout Australia for a given frequency band or service type.
With some regard for geographic particularities, the ACA chooses collections of STUs as radio licenses to be auctioned. Consider the 500 MHz band, the band in which mobile voice services were first offered in Australia. To define new licenses in this band, the ACA considered “a population density model, the digital elevation model (RadDEM), existing radio sites and propagation models of typical transmitters operating from those sites.”[80] The ACA defined licenses about the Australian capital (Canberra) and about the capitals of the seven other states and territories. The license covering Sidney (capital of New South Wales) also extended to the city of Wollongong, the license covering Hobart (capital of Tasmania) included the rest of Tasmania as well, and the license for Perth (capital of Western Australia) included all of a region in the south west of that state. Licenses were also defined about the city of Townsville, on the coast of the state of Queensland, and about the city of Newcastle, on the coast of New South Wales. Additional licenses were defined for the Northern Rivers region in New South Wales, the Central Western region of New South Wales, a coastal region of Victoria, and the Pilbara region of Western Australia.[81]
The geography for the 2 GHz band was somewhat different. This band is associated with advanced mobile services. A working paper considering licenses for this band focused on cities, their population, and the geography of city central business districts.[82] The licenses actually auctioned included licenses defined about Canberra and about the capitals of the seven other states and territories. The areas included in these licenses were generally smaller than the areas included in the corresponding licenses in the 500 MHz band. In addition, the ACA defined