A Desperate Case Under the Commerce Clause: Federal Jurisdiction Over All Radio Use

Abstract

Developments over the past seventy years in law governing radio use demonstrate the importance of judiciously articulating the Commerce Clause. In the absence of such articulation, an expedient and widely acclaimed solution to a regulatory crisis involving AM radio service in the mid-1920s led to apparent federal authority over all radio use. Statutory law governing jurisdiction in radio regulation changed significantly without significant legislative deliberation. Case law ignored the written text of statutory law and converted weak precedent into doctrine through repetition and dicta. To foster a better federal-state balance in radio regulation, courts should read existing Commerce Clause precedent with renewed appreciation for the eighteenth century meaning of commerce as intercourse. Doing so provides a coherent, relevant, and practical basis for Commerce Clause law in the twenty-first century.

Keywords: relational economic geography, spectrum policy, radio frequency management, federalism, wireless, communications, mobile telephony, telephone service

JEL Classification: K2