American Bar Association
Forum on Communications Law
A Legislative History of the Communications Act REVIEWED BY WILLIAM R. MALONE
For more than a decade practitioners have relied on A Legislative History of the Communications Act (Oxford University Press 1989) to tease modern meaning out of the aging provisions of the Communications Act of 1934, which itself had origins in the Interstate Commerce Act of 1887 and the Radio Act of 1927. The Legislative History was a gift to the bar from the Golden Jubilee Commission on Telecommuni-cations, brought forth under the editorship of its Executive Director, Max D. Paglin, a former general counsel and former executive director of the Federal Communications Commission. Now the Jubilee Commission has brought forth a successor volume, The Communications Act: A Legislative History of the Major Amendments 1934-1996.
Max died before the Major Amendments volume could be published, but he worked on it until a few weeks before his death. The volume, published this fall by Pike & Fischer, reflects his editorial leadership, which has been carried to publication by two leading members of the bar, Joel Rosenbloom and James R. Hobson.
The Major Amendments volume presents legislative history in a format different from that employed for the 1934 Act. The first volume photographically reproduced the formal documents of the legislative history as a nourishing meal sandwiched between two layers, the first consisting of four commentaries on the various titles of the Act and the second consisting of a serviceable index. In the middle, the reader found President Roosevelt's message to Congress-ghostwritten by Senator Dill but edited in the president's own hand-transmitting justification of legislation in the form of the study of communications by an interdepartmental committee, followed by photocopies of the hearings, the committee reports, the floor debates, the conference report, and the public law itself. That format was a vast improvement over the old typeset legislative history edited by Professor Bernard Schwartz in his salad days. Not only was the Schwartz version incomplete, but it did not retain the original pagination, thus making citations impossible.
As work on the Major Amendments began, it quickly became apparent to the editors that "the organization scheme employed in Volume I for both commentaries and legislative documents would not work." The volume of the post-1934 legislative materials was staggering. The editors counted some 130 amendments to the 1934 Act and estimated that the legislative materials would constitute approximately 20,000 pages of text. To this total might be added non-Communications Act legislation having a substantial impact on the application of the Act or on the Commission's jurisdiction. After much discussion the editors abandoned the notion of commentaries and an appendix containing substantially all of the relevant legislative documents and decided to organize the new project's commentaries into topical chapters devoted to related amendments. The vast bulk of the formal legislative documents were necessarily left to online sources, electronic media, and the more conventional documentary sources. To the extent that the legislative documents were machine searchable, the need for an index was attenuated.
These editorial decisions have resulted in a volume with new strengths that lie in the topical commentaries, numbering eighteen that show the evolution of the various parts of the law through successive or related amendments. The commentaries freely cite extralegislative sources that explain the motivations and compromises behind the formal legislation.
The first commentary on "Procedures for Awarding, Transferring, Renewing, and Revoking Licenses," by Margaret L. Tobey, covers the McFarland Act Amendments of 1952, the lottery amendments of 1982, and the triumph of the economists in the auction amendments of 1993-all in a concise thirty pages.
The next commentary on the common carrier provisions of the Act reaches back to the antecedents of the 1934 Act in the Interstate Commerce Act of 1887; the Mann-Elkins Act of 1910 that brought telephones under regulation by the former Interstate Commerce Commission; the "Kingsbury Commitment" of 1913, by which AT&T agreed not to acquire any more independent (non-Bell) telephone companies; and the Willis-Graham Act of 1921, which undid the Kingsbury Commitment. In a seventy-five-page commentary, William J. Byrnes deals with the statutory evolution from monopoly to competition, with the hotly contested jurisdictional boundary between the federal and state commissions, and with universal service. What is yet needed to provide a comprehensive understanding of the antecedents of Title II's text is publication of the Senate committee prints of S. 6 from the Republican Congress preceding the Roosevelt landslide and of the annotated committee prints of Senator Dill's draftsman showing the sources of the bill that became the 1934 Act. Many of the ambiguities in the 1934 Act that have bedevilled generations of communications lawyers passed through Congress in 1934 unchallenged and largely unexplained.
The third and masterful commentary is Joel Rosenbloom's commentary on the "Cable Television Amendments." The 1934 Act did not address CATV, and the Cable Communications Policy Act of 1984 was a comprehensive attempt to fill in the "gap" between Title II (Common Carriers) and Title III (Radio). Title VI (Cable Communications) might usefully be thought of as a congressional attempt to confirm and amplify what military veterans would call the "field expedient" methods used by the Commission in the absence of a statutory grant of authority while under sometimes-unfriendly fire from the judiciary.
Among its other virtues, Rosenbloom's commentary reviews what he calls the three-act congressional drama, which played to standing-room-only crowds of lobbyists. George Gilder, the guru, once described a cable system as a PAC (political action committee) with a wire attached, and what struck many as political overreaching by the industry in 1984 produced a Hegelian reaction in the Cable Television Con-sumer Protection and Competition Act of 1992. Unlike the formal legislative history of the 1984 Cable Act, published by the NCTA, which merely hints at what happened in the unscheduled intermission in the legislative process during the first half of 1984, Rosen-bloom gives many of the gory details.
Besides the three big commentaries, volume two contains a smorgasbord of other commentaries that will prove useful to practitioners specializing in broadcasting, privacy, obscenity, international law, sports, etc.
If comprehensive, accurate, and cost-effective statutory interpretations are criteria, the Major Amendments volume qualifies as a must-have for the bookshelf of every domestic practitioner of communications law.
William R. Malone, a partner in Miller & Van Eaton, P.L.L.C., Washington, D.C., is one of a dwindling number of generalists in the communications bar. A decade ago he reviewed A Legislative History of the Communications Act of 1934 for the Communications Lawyer.