FCC Fraud

FCC FRAUD.

FEDERAL COMMUNICATIONS COMMISSION AUTHORITY AND JURISDICTION IN THE SEVERAL STATES OF THE UNION: FACT OR FRAUD?

A Memorandum by Burton O. James III Esq.

This memorandum will be construed to comply with provisions necessary to establish presumed fact (Rule 301, Federal Rules of Civil Procedure, and attending state rules) should interested parties fail to rebut any given allegation of fact or matter of law addressed herein. This position will be construed as adequate to meet requirements of judicial notice, thus preserving fundamental law. Matters addressed herein, if not rebutted, will be construed to have general application. This memorandum addresses authority and jurisdiction of the Federal Communications Commission.

INTRODUCTION.

The growing interest in and popularity of "low-power" radio stations in the AM and FM broadcast bands in America is a phenomenon with the potential of sweeping the nation. Thousands of people are operating "low-power" transmitters (typically capable of generating less than 100 watts) in an effort to provide an alternative to the type of broadcast programming which currently dominates the airwaves offered by the well-funded media giants. It appears, however, that many do so ignorantly, believing themselves and their fellow-broadcasters to be unlicensed "pirates" violating the rules and regulations of the Federal Communications Commission (FCC), and surviving only because of the FCC's limited ability to enforce the "law." Are these people "pirates," criminals flaunting the law at the expense of others, or have they simply been led to believe this by a government agency that capitalizes on the ignorance of the general population? Is the FCC enforcing the law when it prosecutes low-power broadcasters, or is it engaged in perpetrating a grievous fraud against the American people? These questions can only be answered by following one simple rule: believe nothing unless you can prove it in your own research. This memorandum should neither be considered exhaustive nor as legal advice, but only as a starting point for one's own research. It is hoped that others will expand upon this memorandum and dig even deeper to further expose the true nature of the FCC.

NOTE. All common definitions of words are taken from Webster's Seventh New Collegiate Dictionary, and shall be referred to simply as "Webster's." All legal definitions of words are taken from Black's Law Dictionary with Pronunciations, Sixth Edition, and shall be referred to simply as "Black's."

PART ONE: CREATION AND PURPOSE OF THE FCC.

47 CFR Sec. 0.405 Statutory Provisions.

The following statutory provisions, AMONG OTHERS, will be of interest to PERSONS HAVING BUSINESS with the Commission [emphasis added]:

(a) The Federal Communications Commission was created by the Communications Act of 1934, 48 Stat. 1064, June 19, 1934, as amended, 47 U.S.C. 151-609.

(b) The Commission exercises authority under the Submarine Cable Landing Act, 42 Stat. 8, May 27, 1921, 47 U.S.C. 34-39....

(c) The Commission exercises authority under the Communications Satellite Act of 1962, 76 Stat. 419, August 31, 1962, 47 U.S.C. 701-744.

(d) The Commission operates under the Administrative Procedure Act, 60 Stat. 237, June 11, 1946, as amended, .... the provisions of the Administrative Procedure Act now appear as follows in the Code: Administrative Procedure Act 5 U.S.C. Sec. 2-9 - 551-558 Sec. 10 - 701-706 Sec. 11 - 3105, 7521, 5362, 1305 Sec. 12 - 559

This section of the Code of Federal Regulations (CFR) lists items pertinent to the FCC which have been provided for by statute. Let us examine some of them in detail. 47 U.S.C. Sec. 151 Purposes of Chapter; Federal Communications Commission Created For the purpose of regulating interstate and foreign commerce in communication by wire and radio...there is created a commission to be known as the "Federal Communications Commission"....

The FCC was created by an ACT OF CONGRESS (we will get to that later) "for the purpose of regulating interstate and foreign commerce...." The power of law is in the details, especially the definitions of words and phrases.

Just what is "interstate and foreign commerce in communication by wire and radio"?

The common meaning of the word "interstate" is "of, connecting, or existing between two or more states...."

"Commerce," in this context, means "the exchange or buying and selling of commodities on a large scale involving transportation from place to place."

"Foreign" means "situated outside a place or country." When thinking of "foreign commerce," most people would imagine trade with China or Spain. However, definitions in law are often different from commonly understood definitions, as we shall shortly see.

Black's has separate definitions for "foreign," "foreign nations," "foreign states," "foreign commerce," "commerce with foreign nations," "nation," "country," "interstate," "commerce," "interstate commerce," "interstate and foreign commerce," and "state."

The serious researcher should examine all of these definitions, as their thorough study could easily fill an entire book, and will not be attempted here. In Black's we find: Interstate commerce. Traffic, intercourse, commercial trading, or the transportation of persons or property between or among the several states of the Union, or from or between points in one state and points in another state; commerce between two states, or between places lying in different states....

Also from Black's: Interstate and foreign commerce. Commerce between a point in one State and a point in another State, between points in the same State through another State or through a foreign country, between points in a foreign country or countries through the United States, and commerce between a point in the United States and a point in a foreign country or in a Territory or possession of the United States, but only insofar as such commerce takes place in the United States.

The term "United States" means all of the States and the District of Columbia. 49 U.S.C.A. Sec. 10102. Note the differences between these two definitions -- subtle, yet distinct. What is the difference between a state (not capitalized) and a State (capitalized)? Are they the same as one of the "several states of the Union"? Why is the word "state" capitalized in one place and not in another? What is the difference between the "United States" and the "several states of the Union"?

It is no accident that the alternate use of "state," "State," "United States," and "several states of the Union" is found throughout the entire American law, as well as Black's; yet neither offer clear reasons for this important situation. Again, a thorough study of this subject could easily fill an entire book, and will not be attempted here. However, a clue may be found in one particular definition from Black's: State/Foreign state.

A foreign country or nation.

The several United States are considered `foreign' to each other except as regards their relations as common members of the Union. In essence, the "several states of the Union" are foreign and sovereign countries, with different laws, etc. That is why people living in Kansas are not subject to the laws of Texas, and vice versa. In fact, further research indicates that the "several states of the Union" are foreign to the "United States," and the federal government! Even further research indicates that people living in "the several states of the Union" are not subject (except in specific, limited cases) to the laws of the "United States," any more than they are subject to the laws of France! (The astute researcher will notice that the definition above does not mention the "several states of the Union," but instead mentions "the several United States," indicating that, just as there is more than one "state," there is more than one "United States."

These concepts are quite astounding to most people and, in an effort to unravel and understand them, the unprepared researcher may rapidly develop a headache!) If words are to have meaning, and laws made up of words are to be enforced, there must be a way to understand the meanings of the words used in the law.

Many court decisions have stated this concept, such as the following: (The) correct format for evaluating (the) constitutionality of (a) statute is: is (the) expression of crime so clearly explicit that every person of ordinary intelligence may understand specific provisions thereof and determine in advance what is and is not prohibited. -- Whaley v. State, Okl. Cr., 556 P.2d 1063 (1976).

In other words, if the ordinary man on the street cannot understand the law, then that law is probably unconstitutional! How can the law relating to the FCC be understood? The answer lies, among other places, in the DEFINITIONS of words contained in the law itself. Words contained in law can have meanings other than those commonly understood, as long as those definitions are PART of the law. Therefore, "green" can be defined as "blue," as long as that definition is contained in the law, and this is all perfectly "legal."

Since 47 U.S.C. Sec. 151 uses the phrase "interstate and foreign commerce," then we will adhere to that definition, as it is different from the definition of "interstate commerce." 47 U.S.C. Sec. 152 Application of chapter [CHAPTER 5]

(a) The provisions of this chapter shall apply to all INTERSTATE AND FOREIGN communication by wire or radio and all INTERSTATE AND FOREIGN transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided....

(b) Except as provided in Sections 223 through 227...and Section 332...and subject to the provisions of Section 310...and subchapter V-A of this chapter, NOTHING in this chapter 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 communication service by wire or radio....[emphasis added]

The above section seems clear enough -- 47 U.S.C. Chapter 5 applies only to interstate (between states) and foreign matters, and NOT to "intrastate" (within a state) matters. Notice, however, the word "except" in (b). "Except as provided in...." The sections mentioned in (b) deal with the following: Sec. 223 - Obscene or harassing telephone calls.... Sec. 224 - Pole attachments (connecting wires, etc. to utility poles) Sec. 225 - Telecommunications services for hearing-impaired and speech-impaired individuals Sec. 226 - Telephone operator services Sec. 227 - Restrictions on use of telephone equipment Sec. 332 - Mobile services (such as car phones) Sec. 301 - License for radio communication or transmission of energy Subchapter V-A - Cable communications Only Sec. 301 deals with radio and its pertinent sections read as follows: 47 U.S.C. Sec. 301 License for radio communication or transmission of energy.

It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of radio transmission...but not the ownership thereof.... No person shall use or operate any apparatus for the transmission of energy for communications or signals by radio

(a) 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; or

(b) from any State, Territory or possession of the United States, of 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... EXCEPT UNDER AND IN ACCORDANCE WITH THIS CHAPTER and with a license in that behalf granted UNDER THE PROVISIONS OF THIS CHAPTER. [emphasis added]

This section is one that is pointed to by many ham radio operators, who proudly proclaim they have complied with "the law," by working so hard to obtain their Amateur Radio "License." But, if they had carefully read this statute they would have discovered what appears, on the surface, to be a glaring contradiction. If the purpose of the FCC is to regulate "interstate and foreign commerce," and the provisions of 47 U.S.C. Chapter 5 "apply to all interstate and foreign communication," and NOT "intrastate communication," then how can a person be forbidden to broadcast "from one place in any State...to another place in the same State" without first being granted a license?

The key to understanding Section 301 lies in the definitions found in Section 153, and an understanding of the word "includes." 47 U.S.C. Sec. 153 Definitions (e) "Interstate communication" or "interstate transmission" means communication or transmission (1) from any State, Territory or possession of the United States (other than the Canal Zone), or the District of Columbia, (2) from or to the United States to or from the Canal Zone, insofar as such communication or transmission takes place within the United States, or (3) between points within the United States but through a foreign country; but shall not, with respect to the provisions of subchapter II of this chapter (other than Section 223 of this title), include wire or radio communication between points in the same State, Territory, or possession of the United States, or the District of Columbia, through any place outside thereof, if such communication is regulated by a State commission.... (cc) "Station license", "radio station license", or "license" means that instrument of authorization REQUIRED BY THIS CHAPTER or the rules and regulations of the Commission made PURSUANT TO THIS CHAPTER.... [emphasis added]

Why the authors of this statue used the word "means" in one place and the word "includes" in others remains a mystery. However, they do have distinctly different definitions which must be understood in order to unravel the purpose of the law. The question is: how can a person be forbidden to broadcast "from one place in any State...to another place in the same State"?

47 U.S.C. Sec. 153 Definitions (g) "United States" means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone.... Note the use of the word "means" here. Since Black's contains no pertinent definition of the word, we will turn to Webster's:

Means. Usage 2: (1): to have in mind as a purpose: INTEND (2): to serve to convey, show, or indicate: SIGNIFY... If "United States means the several States," does it MEAN Texas or Ohio? Does it MEAN "the several states of the Union"?

47 U.S.C. Sec. 153 Definitions (v) "State" includes the District of Columbia and the Territories and possessions.... Does (v) contain the words "Texas" or "Ohio"? NO! It most definitely does NOT. But, one might say, aren't Texas and Ohio "States"? Doesn't this definition "include" them by inference, along with the other 48 "several states of the Union"?

The answer once again is a resounding NO! Let us examine the words "include" and "includes." According to Black's: Include. (Lat. inclaudere, to shut in, to keep within.) To confine within, hold as in an inclosure, take in, attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Term may, ACCORDING TO CONTEXT, express an enlargement and have the meaning of "and" or "in addition to," or merely specify a particular thing already included within general words theretofore used. "Including" within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation. [emphasis added]

This definition may surprise the novice researcher, who may also argue that the term should be interpreted as an enlargement. This must, however, be done "according to context," "and with a different intention apparent."

From the "Legal Thesaurus," Deluxe Edition, by William C. Burton, MacMillan Publishing Company: Include, verb -- absorb, (Lat.) "adscribere," be composed of, be formed of, be made up of, begird, boast, bound, bracket, circumscribe, classify, close in, combine, compass, (Lat.) "complecti," comprehend, (Lat.) "comprehendere," consist of, consolidate, contain, cover, embody, embrace, encircle, encompass, engird, envelop, girdle, hold, incorporate, involve, merge, put a barrier around, span, subsume, surround, take in, unify, unite.

And from "A Dictionary of Modern Legal Usage," 2nd Edition, by Bryan A. Garner, Oxford University Press: Included. See "Including". Including is sometimes misused for "namely." But it should not be used to introduce an exhaustive list, for it implies that the list is only partial. In the words of one federal court, "It is hornbook law that the use of the word `including' indicates that the specified list...is illustrative, not exclusive." .... See "Including but not limited to." Including but not limited to; including without limitation. In "drafting", these cautious phrases are often essential to defeat three canons of contruction: (Lat.) "inclusio unius est exclusio alterius" ("to express one thing is to exclude the other"), (Lat.) "noscitur a sociis" ("it is known by its associates"), and (Lat.) "ejusdem generis" ("of the same class or nature"). .... Even though the word "including" itself means that the list is merely exemplary and not exhaustive, the courts have not invariably so held. So the longer, more explicit variations may be considered necessary....

Note that the definition in 47 U.S.C. Sec. 153 does not use the word "including" as a term of enlargement, but rather uses the more limiting word "include(s)." In the absence of an apparently different intention and based upon some understanding of the rules of construction of law, it is the conclusion of this author that there is NO contradiction between Section 301 and Section 151 and 152, because the definition of "State" in 47 U.S.C. does not "include" Texas, Ohio, Kansas, or any of the other "several states of the Union." In the context of 47 U.S.C. and the FCC, the "United States" includes ONLY the District of Columbia and the Territories and possession of the United States.

This brings up an interesting situation in which it can be argued that "interstate and foreign commerce" and "communication" or "transmission" takes place ONLY among the District of Columbia and the Territories and possessions! Therefore, commerce, communication, or transmission between someone in Texas and someone in Kansas is not "interstate"! This may, however, be pushing the legal "envelope" a bit, and should, for now, be considered only as icing on what appears to be a well-defined cake.

CONCLUSION OF PART ONE

The FCC exists solely to regulate "interstate and foreign commerce"; that is, commerce between states and other states and/or countries. Pertaining to low-power radio broadcasters and stations, 47 U.S.C. Chapter 5 applies ONLY to interstate and foreign communication or transmission, and clearly does NOT apply to commerce, communication, or transmissions taking place solely within the confines of one of the several states of the Union.

If you know where Part Two is, let us know