Origins

The United States passed the Radio Act in 1912, which provided authorization for licensing of radio stations. It was not until 1920, however, that the secretary of commerce began to exercise this authority. Congress had decided to empower the secretary of commerce because radio was seen as interstate commerce: thus, the Department of Commerce was the logical choice to handle the authorization of these new radio stations. It did not rake long to realize that radio licensing and regulation was a much larger task than could be handled by the secretary of commerce in addition to his regular duties. At the First National Radio Conference in Washington, D.C., in 1922, government officials and amateur and commercial radio operators met to discuss problems facing the infant industry. A technical committee's report resulted in the introduction of legislation in 1923, but it never got out of Senate committee.

At the Second National Radio Conference in 1923, many of the same problems were revisited, most notably concerns about interference. Because interference was greatest in places with the most transmitters (population centers) and less of a problem in remote areas, a recommendation emerged from the conference that the nation be divided into zones and that different rules be established for different zones based on their own specific needs. Again, legislation was introduced into Congress, bur it never advanced beyond committee. A third national conference in 1924 produced no legislation either. Finally, the Fourth National Radio Conference in 1925 produced the proposals that would lead to the Radio Act of 1927.

During all this time, the secretary of commerce continued to license radio stations. The difficulty came when secretary Herbert Hoover attempted to not license a station. In 1923 Inter-city Radio applied for a renewal of its license. The request was denied based on a determination that there was no longer spectrum space available. Intercity appealed the case, and the Federal Circuit Court of Appeals ruled in their favor. According to the court, the 1912 Act authorized the secretary of commerce to grant licenses: it did not grant the authority to deny them. In the court's judgment, the secretary of commerce had to accommodate applicants by finding them spectrum space that would cause the least amount of interference.

The secretary's authority was further undermined in a 1926 court decision. Zenith Radio had been operating a station in Denver with a prescribed allocation limiting it to two hours of broadcasts per week. The station challenged the authorization by using other frequencies not specifically allocated to it. When secretary of commerce Herbert Hoover filed suit against Zenith, the court ruled that Zenith was within its rights, citing a section of the Radio Act that allowed stations to use "other sending wave lengths." For all intents and purposes, such a decision authorized any licensed station to operate on virtually any frequency in addition to the one allocated.

The result of the two court cases was devastating to the secretary of commerce's assumed authority to regulate radio stations. Following the decision in the Zenith case, the secretary sent a letter to the U.S. Attorney General requesting an opinion on the authority vested in the secretary of commerce by the Radio Act. The attorney general's response only reinforced what the courts had already decided. The interpretation of the Radio Act of 1912 was that licensed stations could use virtually any frequency they wanted, at whatever rimes and using whatever transmitting power they wanted. With the secretary's authority eviscerated, President Calvin Coolidge asked Congress to create new legislation. With the president's endorsement, legislation that had been proposed as a result of the 1925 National Radio Conference moved swiftly through Congress, and the Radio Act of 1927 was signed into law by President Coolidge on 23 February 1927.

lnitial Tasks

Central to the 1927 Act was the establishment of the FRC. Instead of having one person overseeing licensing and regulation of radio, a commission of five people appointed by the president and approved by the Senate would handle the duties. Perhaps influenced by the thinking that different geographic regions would have different needs, commissioners were to represent those different regions. When it passed the Radio Act of 1927, Congress naively believed that the FRC would need to act for only one year to straighten out all the confusion in radio regulation and licensing. After that, things would be well enough established that the agency could serve only as an appellate board for actions by the secretary of commerce. W. Jefferson Davis wrote in the Virginia Law Review that after the first year, "the Secretary of Commerce will handle most of the problems that arise, and the Commission will probably function only occasionally." Clearly, that was not to be the case. The FRC's authority was made permanent in 1930 and was extended until 1934, when it was replaced by the Federal Communications Commission (FCC).

The FRC got off to what was at best a shaky start, as Congress had not financed it. The FRC came into existence without an appropriation from Congress. The original commissioners were required to do their own clerical work, and engineers had to be "borrowed" from other agencies for several years. Furthermore, Congress confirmed only three of the five nominees from President Coolidge in the first year. Two of the five appointees died during the Commission's first year. Only one of the original FRC members, Judge Eugene O. Sykes, was still serving just two years later. In spite of these difficulties, the FRC was able to dramatically advance the nation's radio regulatory policy in its eight years of existence, at a crucial time for the development of commercial radio. Even the publication Radio News recognized the enormity of the FRC's task and the efficiency with which it worked. In November 192.9, the publication stated,

Not in the history of federal bureaus has any commission ever been called upon to perform so great a task in so short a span of time. The already overloaded departments of the federal government could not have treated with radio problems on this scale without a great increase in personnel and what would have been tantamount to the setting up of a radio commission within the department to which it might have been assigned. By its segregation and absolute independence, radio has been regulated and its major problems have been solved without handicapping any other federal bureau ("Public Interest, Convenience and Necessity," in Radio News [November 192.9]).

The Radio Act of 192.7 empowered the FRC with the authority and regulatory discretion that the secretary of commerce had lacked under the Radio Act of 1912. The new act specifically granted the FRC authority to license stations for a limited period of time; to designate specific frequencies, power, and times of operation of stations; to conduct hearings and serve as a quasi-judicial body; and to deny a license or to revoke an existing license. All of these powers had been denied the secretary of commerce.

Legal Challenges

It did not take long for the FRC's enforcement authority to be legally challenged. Technical Radio Laboratory sought a license renewal for its station in Midland Park, New Jersey, and was denied by the FRC because there was not adequate spectrum available. Whereas Intercity had successfully challenged denial of its renewal request, Technical Radio Laboratory was not so fortunate, because the courts found that the FRC was within its authority. Dozens of other cases would follow, with similar results. Congress had taken the appropriate steps to provide the FRC with licensing authority.

According to the Radio Act, the FRC's jurisdiction was based on Congress' authority to regulate interstate commerce. Thus, radio stations that did not transmit across a state line might not have to be regulated by them. In theory, at least, radio stations involved only in intrastate commerce rather than interstate commerce were not subject to federal jurisdiction. Just such an assertion was made in the case of United States v Gregg. An unlicensed Houston station challenged the FRC's authority, claiming that its signal was not interstate commerce. The court accepted the FRC's argument that it had 10 have authority over all transmissions, even those that did not cross state lines, because otherwise it could not control the interference that might affect other, regulated stations. Leery of raising questions of states' rights, Congress had avoided the issue in the Radio Act of 1927. In 1933 the court extended FRC authority to cover all radio transmissions.

For the most part, the FRC fared quite well in challenges to its regulatory authority. To be sure, there were cases that the FRC did not win, but it certainly won many more than it lost. The Commission's ability to exercise regulatory authority over the broadcast spectrum became greater with each legal decision. In two highly visible cases, the FRC was able to deny license renewals for stations that had not acted in the public interest. In 1931 the court upheld the FRC in denying a renewal to Dr. John R. Brinkley's station, KFKB (Brinkley had been using his station to prescribe medications). Brinkley claimed that the FRC had no authority to censor him. The court held that the FRC was not engaging in censorship by examining the record to determine if a licensee had acted in the public interest. The following year, Dr. Robert Schuler of Trinity Methodist Church appealed the denial of his station license, KGEF, claiming that his free speech rights had been violated. The court rejected that argument on the premise that the Commission was not preventing Schuler from making his vitriolic comments. As with Brinkley, the FRC could use his past record as an indication of how he would serve the public interest.

Defining the Public Interest

Included in the Radio Act of 1927 was the stipulation that the FRC would act "as public convenience, interest, or necessity requires." Likewise, stations were to be licensed to serve the same public interest, convenience, and necessity. Congress borrowed the language from other legislation regulating public utilities. This vague directive from Congress served as the guiding philosophy for the FRC. In one action in 1928, the FRC denied 62 license renewals and modified the operations of dozens more. A month later, the FRC issued a statement to explain its interpretation of the public interest standard and how it was to be applied. As the FRC pointed out in its statement, "no attempt is made anywhere in the act to define the term 'public interest, convenience, or necessity,' nor is any illustration given of its proper application" (FRC annual report, 166 [19281). While asserting that a specific definition was neither possible nor desirable, the FRC set forth some general principles regarding the public interest. Perhaps most illustrative of all is the concluding sentence from the FRC's statement: "The emphasis must be first and foremost on the interest, the convenience, and the necessity of the listening public, and not on the interest, convenience, or necessity of the individual broadcaster or the advertiser." The language mirrors the sentiment of Rep. Wallace H. White, cosponsor of the bill that became the Radio Act of 1927, who said:

We have reached the definite conclusion that the right of our people to enjoy this means of communication can be preserved only by the repudiation of the idea underlying the 1912 law that anyone who will may transmit-and by the assertion in its stead of the doctrine that the right of the public to service is superior to the right of any individual to use the ether (67th Cong. Rec. 5479 (1926)).

The FRC determined that the public interest is served by having a "substantial band of frequencies set aside for the exclusive use of broadcasting stations and the radio listening public." It also adopted the general premise that the greatest good is served by minimizing interference. It follows from this that denying licenses in order to prevent interference, detrimental though it may be to some prospective broadcasters, serves the greatest good. The commission stated its intent to use the past record of a licensee to determine whether that station is deserving of a license. The reliability of a station's transmissions were also to be considered. Stations that could not be relied upon to transmit at regularly scheduled, announced times or whose transmission frequencies wandered around the spectrum did not serve the public interest. More than 70 years later, these interpretations of serving the public interest are still considered valid.

Also included in the 1928 statement on the public interest was the principle that stations should operate at different classes of service in order to ensure that there would be some stations serving larger geographic areas, while other stations served only small communities. This coincided with Congress' view, which had been stated earlier that same year when the Radio Act of 1927 was amended by the Davis Amendment in 1928. In addition to extending the FRC's authorization beyond its original year, the amendment directed the FRC to devise a scheme for providing equitable radio services in all zones of the country. One week following the FRC's statement on the public interest, it issued a plan for providing different classes of radio service. Each of the nation's zones would have an equal number of channels assigned as clear channels, regional channels, and local channels. Clear channels were designated to be high-power stations audible at a distance, whereas regional and local channels had decreasing coverage areas. Eight clear channels, seven regional channels, and six local channels were assigned to each of the five zones. The FRC's basic concept of clear, regional, and local channels remained in force more than six decades later.

One of the public-interest principles established by the FRC that did not continue with the FCC was the concept that licenses should not be provided to stations that offer services that duplicate those already available. The FRC stated that simply playing phonograph records on the air does not provide the listening public with anything that it cannot otherwise obtain. The FRC would have maintained a licensing scheme that would compare the programming intentions of the applicants. It can also be inferred that the FRC did not favor licensing stations whose formats mirrored those of stations already in the community. Based on today's radio business, that policy clearly did not survive.