Dennis & Callahan criticized for "election postponed" joke

[Garrett Wollman]

<<On Wed, 5 Nov 2008 14:15:24 -0500, Sid Schweiger <sid@wrko.com> said:

> Then show me where, at law, such public ownership is specifically
> spelled out...

The terms of the licenses that the Commission hands out state clearly
that they do not transfer any ownership interest in the spectrum.
This implies that the public owns it.  47 U.S.C 301:

# 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; and to provide for the use of such channels, but not
# the ownership thereof, by persons for limited periods of time, under
# licenses granted by Federal authority, and no such license shall be
# construed to create any right, beyond the terms, conditions, and
# periods of the license.

I think our friend Joe Ross has written before about the "bundle of
rights" theory in property law; if I'm remembering my terminology
correctly, in property law, a license is the weakest form of interest
one can have: a non-transferable, temporary right to use the property
-- it's what a ticket to the movies or a sporting event is (it
probably says exactly that in the fine print on the reverse).  If we
think of spectrum as being analogous to property, then in order for
the FCC to grant a license to use it, it must have the right to grant
such licenses, which implies that the airwaves are in public
ownership.

In "The Public and Broadcasting", the Commission writes:

# In exchange for obtaining a valuable license to operate a broadcast
# station using the public airwaves, each radio and television licensee
# is required by law to operate its station in the "public interest,
# convenience and necessity."

> and if not, how the Tenth Amendment applies.

The same as it applies to any other question, i.e., not at all.  The
Tenth Amendment is mere interpretive guidance, put there because, in
the traditions of legal interpretation, the reservation of specific
powers under the Constitution to the states could otherwise be
interpreted as the exclusive definition of their powers.  See United
States v. Darby, 312 U.S. 100, 124 (1941).  The FCC's exclusive
jurisdiction over this particular commons derives from the Commerce
Clause -- otherwise it would belong individually to each state.

-GAWollman