Motion 3

Constitution Violation: 47 USC, Section 301

For years, the FCC failed to recognize the needs of FM micro-broadcasters. Micro broadcasters naturally sought the most worthy basis for repudiating the premise that the FCC has authority to license peanut-sized stations. Low-power FM micro-broadcasters have long held that in the majority of cases, application of interstate commerce law to their form of limited, short-range, often non-commercial broadcasting, is a fundamentally flawed concept. Experienced constitutional attorneys also have questions concerning the federal government's insistence that all such stations can be licensed by the FCC pursuant to the constitution.

When micro-broadcasters are charged by the FCC for not possessing a license, it is done pursuant to authority claimed in 47 U.S.C., Sec. 301. 47 U.S.C., Sec. 301, decribes the power of the FCC to control the channels of radio transmission by means of issuing licenses for that purpose. It specifies exactly who must possess a license. From 1934 to 1982, Sec. 301(b) read "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". Prior to 1982, Sec. 301 was, therefore, in conformance with the U.S. Constitution, because no claim of licensing authority was made for radio transmissions which exhibit no substantive affect outside one of the several States.

In 1982, Sec. 301 was amended by Public Law 97-259, giving the FCC power to license and control radio transmissions which remain entirely within one state and have no substantive affect on interstate commerce. Sec. 301(a), as amended, now reads "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, or possession, or District". Since 1982, it is unclear how Section 301 can be constitutional. Constitution-minded attorneys tend to believe that a congressional "finding" needs to be made to determine the basis of any claimed constitutional authority.

During my criminal trial, which took place 2/23/98 through 2/25/98, attorney Larry Becraft entered a motion which challenged the constitutionality of Sec. 301, as amended. The judge denied the motion without comment, which is common practice at the trial level. The motion was nevertheless preserved for the record and the case is to be appealed. The F.C.C. demands that all short-range, non-commercial radio stations be licensed by the federal government whether interstate commerce is involved or not. The popular belief is that the principles inherent in the FCC's contention ought to be decided by the U.S. Supreme Court.

The Federal Communications Commission was created by the Communications Act of 1934. It is interesting to note that the claimed jurisdiction of the FCC is "interstate and international communications". Eric Johnson, of Everette, Washington, directed an inquiry to the Washington, DC, FCC office asking for a statement of claimed jurisdiction. A copy of the March 3, 1997 FCC response, signed by a Stanford Felds, is included among the Documentation. Felds clearly informs us that FCC jurisdiction is "inter-state and foreign commerce in radio communications", and "intra-state radio communications may be regulated by individual states." If an FCC agent is placed on the witness stand in open court under Oath, he will claim only interstate and foreign/international jurisdiction. If a government attorney makes an assertion of FCC jurisdiction within written pleadings submitted under penalty of perjury, he will only use the words "interstate and foreign/international" in describing such jurisdiction. You can independently verify the FCC's claim of jurisdiction yourself.

It is a well-known fact that U.S. Constitution, Article I, Section 8, defines the limited powers of the U.S. Congress. For any particular Congressional legislation to stand as valid law, an "enabling clause" must be found in Art. I, Sec. 8. In the case of the Communications Act of 1934, the enabling clause applicable to the several States is Art. I, Sec. 8, Cl. 3. If you do not have a copy of the Constitution close at hand, you can easily verify the lack of ambiguity in the wording of Art. I, Sec. 8, Cl. 3, by viewing that clause at

Art. I, Sec. 8, Cl. 3, is often referred to as the "interstate commerce clause", or simply the "commerce clause." This clause has nothing to do with the private activities of a natural person, nor does it in any way lay claim to intrastate jurisdiction. The FCC's claim of jurisdiction in their mission statement is a perfectly constitutional one. However, a major problem arises upon due consideration of the nature and form of jurisdiction exercised by the FCC. There is absolutely no correlation between the two and that is an issue to be resolved.