Subject: [NEXTEL-1] A Desperate Case under the Commerce Clause:Federal Jurisdiction over All Radio Use

From: [email-masked]
Date: Tue, 15 Jul 2003 18:05:56 -0400

A Desperate Case under the Commerce Clause:

Federal Jurisdiction over All Radio Use
Douglas A. Galbi

Federal Communications Commission
September 21, 2002

Abstract

Developments over the past seventy years in law governing radio use demonstrate
the importance of judiciously articulating the Commerce Clause. In the absence of
such articulation, an expedient and widely acclaimed solution to a regulatory
crisis involving AM radio service in the mid-1920s led to apparent federal
authority over all radio use.  Statutory law governing jurisdiction in radio
regulation changed significantly without significant legislative deliberation.
Case law ignored the written text of statutory law and converted weak precedent
into doctrine through repetition and dicta. To foster a better federalstate
balance in radio regulation, courts should read existing Commerce Clause precedent
with renewed appreciation for the eighteenth century meaning of "commerce" as
"intercourse." Doing so provides a coherent, relevant, and practical basis for
Commerce Clause law in the twenty-first century.

1 The opinions and conclusions expressed in this paper are those of the author.
They do not necessarily reflect the views of the Federal Communications
Commission, its Commissioners, or any staff other than the author. I am grateful
for numerous FCC colleagues who have helped me and encouraged me. The most current
version of this paper, and related papers, are available at

http://www.galbithink.org

Table of Contents
I. Introduction
II. Absence of Substantive Deliberation
III. Case Law on the Federal-State Balance in Radio Regulation
IV. Misunderstanding Commerce in the Real World
V. Re-Articulating Commerce
VI. Spurring Fruitful Deliberation
VII. Doing Justice in Communications
VIII. Conclusion

 http://users.erols.com/dgalbi/telpol/desca.pdf

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