Cybertelecom Federal Internet Law & Policy An Educational Project

Communications Act of 1934

"The American Telephone and Telegraph Company is more powerful and skilled than any state government with which it has to deal." -Preliminary Report on Communication Companies, 73d Cong., H Rep No 1273 (1936) (Sam Rayburn)

Morse introduced Telegraph service in 1842; it quickly came to fall under the authority of a mixture of state jurisdiction, the Interstate Commerce Commission, and Post Office oversight. Bell introduced Telephone service in 1877; conceived as "voice telegraphy," offered over the essentially the same poles, wires, and right of way as telegraphy, and with telegraph service dominating communication service at the time, authority over telephone service followed the path of telegraph service. Guglelimo Marconi received, in 1897, a U.S. patent for radio; jurisdiction over radio as initially a maritime concern fell to the U.S. Navy and then to the Federal Radio Commission.

Government officials, however, wanted a strong expert agency (see "Chevron Doctrine") that could counter the size and power of AT&T, Western Union, and other communications firms with significant market power. State governments had become overwhelmed by the resources of AT&T. Communications companies were using their deep pockets to litigate every dispute, repeatedly taking issues that they had lost on up to the Supreme Court - as a means of leveraging their position and extracting what they wanted from local authorities. See Post Roads Act Litigations Having regulatory authority divided and spread out across various federal agencies made federal oversight weak and ineffective. Officials were unhappy with the Interstate Commerce Commission which had been tasked with oversight of telephone and telegraph services, but which was preoccupied with railroad regulation. [1934 Study at 7 ("[The ICC] already burdened with its great responsibilities on railroad regulation has never been very active in the regulation of communication agencies... [The ICC has] no departments, bureaus, or divisions that dealt exclusively with radio, telephone, telegraph, or cable matters, that few such cases had ever been heard by the Commission, and that there were no employees in any of the departments or bureaus who dealt exclusively with communication matters...")] [Brands p 4]

"President Franklin D. Roosevelt in 1933, requested the Secretary of Commerce appoint an interdepartmental committee for studying electronic communications. The Committee reported that "the communications service, as far as congressional action is involved, should be regulated by a single body." [1934 Study at 8] The Committee stated

Although the cable, telegraph, telephone, and radio are inextricably intertwined in communication, the Federal regulation of these agencies, in our country, is not centered in one governmental body. The responsibility for regulation is scattered. This scattering of the regulatory power of the Government has not been in the interest of the most economical or efficient service.

[1934 Study at 6] The American Bar Association agreed.

That the communication problem is worthy of serious consideration by Congress and those in authority cannot be doubted. Division of authority over subject matter not readily susceptible of division has continued too long. Communication problems are communication problems whether the agency employed be telephone or telegraph, wire or wireless. All communication systems of any magnitude own and operate or by arrangement use facilities of both types.

[1934 Study at 6]

On February 26, 1934, the President sent a special message to Congress urging the creation of the Federal Communications Commission (FCC). The following day Senator Dill and Representative Sam Rayburn of Texas introduced bills to carry out this recommendation. The Senate Bill (S.3285) passed the House on June 1, 1934, and the conference report was adopted by both houses eight days later. The Communications Act was signed by President Roosevelt on June 1934. Particular parts of it became effective July 1, 1934; other parts on July 11, 1934. And thus the FCC was born.

The Federal Communications Commission assimilated from other preexisting agencies:

• authority over civilian radio use
  • Federal Radio Commission (1927-34)
  • Department of Commerce, Radio Service (1911-32)
• authority over telephone, telegraph, and cable companies from the Interstate Commerce Commission 1910-34
• authority over telegraph rates from the Post Office Department, and
• authority over cable landing rights from the Department of State 1921-34.

The Communications Act allowed the FCC additional authority, including regulation of rates of interstate and international common carriers, and domestic administration of international agreements relating generally to electronic communication. [Compare 78 Cong. Rec. 10,313 (1934) ("The bill as a whole does not change existing law, not only with reference to radio but with reference to telegraph, telephone, and cable, except in the transfer of jurisdiction [from the ICC to the FCC] and such minor amendments as to make that transfer effective.")]

73d Congress SENATE Document 2d Session No. 144 FEDERAL COMMUNICATIONS COMMISSION ------------- MESSAGE from THE PRESIDENT OF THE UNITED STATES recommending That Congress Create a New Agency to be Known as the Federal Communications Commission ------------- February 20 (calendar day, February 26), 1934. --Read; referred to the Committee on Interstate Commerce and ordered to be printed ------------- To the Congress:  I have long felt that for the sake of clarity and effectiveness the relationship of the Federal Government to certain services known as utilities should be divided into three fields: Transportation, power, and communications. The problems of transportation are vested in the Interstate Commerce Commission, and the problems of power, its development, transmission, and distribution, in the Federal Power Commission. In the field of communications, however, there is today no single Government agency charged with broad authority. The Congress has vested certain authority over certain forms of communications in the Interstate Commerce Commission, and there is in addition the agency known as the Federal Radio Commission. I recommend that the Congress create a new agency to be known as the Federal Communications Commission, such agency to be vested with the authority now lying in the Federal Radio Commission and with such authority over communications as now lies with the Interstate Commerce Commission - the services affected to be all of those which rely on wires, cables, or radio as a medium of transmission. It is my thought that a new commission such as I suggest might well be organized this year by transferring the present authority for the control of communications of the Radio Commission and the Interstate Commerce Commission. The new body should, in addition, be given full power to investigate and study the business of existing companies and make recommendations to the Congress for additional legislation at the next session. Franklin D. Roosevelt The White House,         February 26, 1934

Communications Act of 1934

In 1934, only 1.5% of telephone traffic was "interstate." The rest was intrastate, over which the FCC lacked jurisdiction. [1934 Study at 9] [Mueller 6]

The Communications Act of 1934, as amended, consists of six major "titles":

Chapt 1: The Post Roads Act (telegraph :: repealed in 1947)

Chapt 4: Radio Act of 1927 (repealed 1934)

Title I - General Provisions: (including Ancillary Jurisdiction)

47 USC 151: "For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter."

47 USC 152: "(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; but it shall not apply to persons engaged in wire or radio communication or transmission in the Canal Zone, or to wire or radio communication or transmission wholly within the Canal Zone. The provisions of this chapter shall apply with respect to cable service, to all persons engaged within the United States in providing such service, and to the facilities of cable operators which relate to such service, as provided in subchapter V–A."

Title II - Common carriers (originating from the Mann Elkins Act)

Title III - Provisions related to radio

Title IV - Procedural and administrative provisions.

Title V - Penal Provisions; Forfeitures.

Title VI - Cable Communications  

Major Communications Laws: Constitution, Art. 1, Sec. 8: Granting USG authority to establish Post Offices and Post Roads Post Roads Act of 1866: Extending USG authority over Post Roads to authorize telegraph networks on Post Roads Mann Elkins Act of 1910: Placing telephone and telegraph providers under the authority of the Interstate Commerce Commission Communications Act of 1934: consolidating federal communications authority into one independent expert agency Telecommunications Act of 1996: Pre-Internet policy, attempt to introduce competition into the telecommunications market (included Sec. 230)

The Communications Act has evolved, being amended by: 21st Century Communications and Video Accessibility Act Act of May 20, 1937, 50 Stat. 189 Act of March 29, 1937, 50 Stat. 56. Broadband Data Improvement Act of 2008 Cable Act of 1984 Cable Television Consumer Protection and Competition Act of 1992 CALEA Can Spam Act Children's Internet Protection Act Children's Online Protection Act Communications Satellite Act The Electronic Communications Privacy Act Internet Tax Freedom Act NET 911 Improvement Act Satellite Home Viewer Act Satellite Home Viewer Improvement Act Communications Satellite Act-Amendment of 2005 The Telecommunications Act of 1996 Telephone Consumer Protection Act

References

• To Amend the Communications Act of 1934: Hearings Before a Subcommittee of the Committee on Interstate Commerce, United States Senate, Seventy-fourth Congress, First Session, on S. 1335, a Bill to Amend Section 202 of the Communications Act of 1934, Exclusive Contracts
• Study of Communications By the Interdepartmental Committee, Letter from the President of the United States to the Chairman of the Committee on Interstate Commerce, Transmitting a Memorandum from the Secretary of Commerce Relative to a Study of Communications by an Interdepartmental Committee [1934 Com. Study]
• Lehr, William and Sicker, Douglas, Communications Act 2021 (2017)
• A Legislative History of the Communications Act of 1934 (Max D. Paglin, Ed.), Oxford University Press (1989) at 437-442 (letter of Senator Dill, Chair of the Senate Commerce Committee to Sam Rayburn, Chair, House Commerce Committee, explaining Senate bill and differences with existing Interstate Commerce Act provisions).
• Rosenbloom, Joel (1994) "On the Sixtieth Anniversary of the Communications Act of 1934," Federal Communications Law Journal: Vol. 47: Iss. 2, Article 33.
• Glen 0. Robinson, The Federal Communications Act: An Essay on Origins and Regulatory Purpose ,in A LEGISLATIVE HISTORY OF THE COMMUNICATIONS ACT OF 1934 3, 3-5 (Max D. Paglin ed., 1989).
• History of Wire and Broadcast Communication, FCC (May 1993)