United States v. Clarence P. Brown

661 F.2d 855, 50 Rad. Reg. 2d (P & F) 505, 1981 U.S. App. LEXIS 16918

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 14, 1981
• Docket: 81-1221
• Status: Published

Opinions

PER CURIAM.

Clarence P. Brown appeals his conviction by jury for transmitting radio energy without a license in violation of 47 U.S.C. § 301(d). The only question on appeal is whether the trial court’s instruction to the jury was erroneous when it did not state that the government must show the signals actually left the state.¹

Based upon radio transmissions they intercepted in Arvada, Colorado, agents of the Federal Communications Commission (FCC) obtained an affidavit for a search warrant. Pursuant thereto they confiscated from Brown’s residence a citizens’ band type radio transmitter, linear amplifiers, and other radio transmitting apparatus capable of transmitting signals over a hundred miles. The agents testified that although they intercepted the radio signals within Colorado, only a few miles from Brown’s transmitter, the wattage of the transmissions was greater than the FCC allows for citizens’ band use, and the transmissions could have crossed state borders or interfered with interstate radio signals.

Radio communications have traditionally been considered interstate commerce and subject to federal regulation. Pulitzer Publishing Co. v. FCC, 94 F.2d 249, 251 (D.C. Cir.1937). See WOKO, Inc. v. FCC, 153 (D.C.Cir.), rev’d on other grounds, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946) (plenary power). Cf. Gagliardo v. United States, 366 F.2d 720, 723 (9th Cir. 1966) (construing 18 U.S.C. § 1464). The issue at bar is one of statutory construction, whether under the “effects” test of 47 U.S.C. § 301(d) the government must prove the signals actually extended across a state border. The government offered no proof here that Brown’s transmission actually interfered with interstate transmissions or that it crossed a state’s border. The statute declares that “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio ... (d) within any State when the effects of such use extend beyond the borders of said State.” 47 U.S.C. § 301 (emphasis added).

The statute states expressly that the United States intends to control all channels of interstate radio transmission.² Cf. American Radio Relay League, Inc. v. FCC, 617 F.2d 875 (D.C.Cir.1980) (upholding FCC authority to prohibit manufacture and sale of amplifiers that might be misused by citizens’ band operators). We need not consider here all possible applications of the “effects” test for violation of subsection (d); we hold, however, that it is satisfied by proof that defendant’s transmission was powerful enough to cross the state border. Requiring the prosecuting authorities to monitor defendant’s signal from a point outside the state in order to sustain his conviction seems to us to impose a greater burden than the statute contemplates. The evidence presented to the jury in the instant case was sufficient to support its judgment that Brown violated the statute. The jury instruction correctly reflected the applicable law.

AFFIRMED.

1 . The trial judge gave the following instruction, in pertinent part:

“First, the act or acts of using and operating an apparatus for transmission of energy, communications or signal by radio, thereby transmitting energy, communications or signals by radio when the effects of such use extend or could extend beyond the borders of the State of Colorado.

“Second, doing such act or acts without a license first having been granted.

“Third, doing such act or acts knowingly and willfully ....

“You are instructed that in order to establish that the effects of transmission of energy, communications or signals by radio from and within the State of Colorado extend beyond the borders of. said state, the government need not prove that the radio signals actually traversed state borders. The fact that radio transmissions may not have traversed state borders is irrelevant.”

2 . 47 U.S.C. § 301 reads as follows:

“It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of interstate and foreign 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. No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio (a) from one place in any Territory or possession of the United States or in the District of Columbia to another place in the same Territory, possession, or District; or (b) 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; or (c) from any place in any State, Territory, or possession of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or (d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State; or (e) upon any vessel or aircraft of the United States; or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.”

47 U.S.C. § 301 (emphasis added).