IN THE MATTER OF
 

Petition for a Microstation Radio Broadcasting Service

RM-9208

 
 

COMMENTS OF:

David Moore
1108 W. Main, Suite 101
Norman, OK  73069

I, David Moore,  file these comments on April 2,  1998,  in the FCC's rule-making procedure in consideration of the above-captioned "Petition for a Microstation Radio Broadcasting Service, RM-9208."  Below please find a summary of my comments, followed by details, explanations and other needful materials.

It is my belief that the petition in question is moot in light of the fact there are certain unsettled issues of fact and law which should be addressed and resolved prior to the creation of any new "Broadcasting Service." These issues are set forth as follows:

1.    The authority  and  jurisdiction  of  the  FCC  is  limited,  both Constitutionally and by statute, to the regulation of "interstate and foreign commerce."
 

Constitution for the united States of America Article 1, §8, clause 3

The Congress shall have the power.. .To regulate commerce with foreign nations,  and among the several  States,  and with the Indian tribes;

47 U.S.C.  §151 Purposes  of  Chapter;  Federal  Communications Commission Created

For the purpose of regulating interstate and foreign commerce in communication by wire and radio... there is created a commission to be known as the "Federal Communications Commission.....

47 U.S.C. §301

... 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 State.. to another place in the same State.. except.. with a license in that behalf granted under the provisions of this chapter.

I believe that this situation exists because of either one of two reasons:

(a) The FCC does not understand the true wording and intent of the statute, or

(b) 47 U.S.C. §301 is patently unconstitutional on its face.

However,  the regulations at 47 C.F.R.  §§73.3511,  et seq.,  fail to display  0MB  control  numbers,  and  therefore  the  public  protection provisions of 44 U.S.C. §3512 apply.   In this light,  the licensing requirements of 47 U.S.C. §308 are invalid and unenforceable.

Laws  and lawsuits  are held invalid and dismissed,  and people are released or sent to prison every day because of technicalities, and the technical deficiencies described above must be addressed and corrected before serious consideration can be given to any further licensing schemes.  Indeed, those who have been convicted or otherwise penalized by the application and enforcement of invalid regulations may have ground for redress against the FCC in this regard.

Explanations and further details regarding this situation follow in the section titled "Explanations and Other Needful Materials" as "2. PRA Violations Brief."

3. The purported requirement for one to obtain a license from the Federal Communications Commission is predicated upon 47 U.S.C., §308, which in turn is implemented by 47 C.F.R., §73.3514, neither of which dictates that an applicant for a license provide specific information to the Commission in an application form.  Further, the alleged legal requirement of an applicant for a radio broadcasting license to supply specific information arises only from the actual application form itself, which consequently makes such form a "rule" under the Administrative Procedures Act, 5 U.S.C., §552, et seq.

However,  this application form has never been promulgated as a rule pursuant  to  the  Administrative  Procedures  Act,  consequently  such application form is void and unenforceable.

Since any enforcement or prosecution completely depends upon a valid legal requirement that a person apply for a license from the FCC, but since the application form is an unenforceable rule, no penalty may be imposed upon any person who does not possess or declines to apply for such a license.

Again, laws and lawsuits are held invalid and dismissed, and people are released or sent to prison every day because of technicalities, and the technical deficiencies described above must be addressed and corrected before serious consideration can be given to any further licensing schemes.  Indeed, those who have been convicted or otherwise penalized by the application and enforcement of invalid regulations may have ground for redress against the FCC in this regard.

Explanations and further details regarding this situation follow in the section titled "Explanations and Other Needful Materials" as "3. APA Violations Brief.."

It is my sincere hope that the FCC will give serious thought and consideration to the issues addressed in my comments.   Indeed, it is the FCC that should take the "moral high ground," as servants of the American population at large, and in the pursuit of justice, to correct the Constitutional and technical deficiencies which now plague the Commission in it's pursuit to fulfill it's mandate.  Instead of waiting until a non-licensed broadcaster is shot and killed in the service of a dead-of-night  "no-knock" seizure warrant,  I  strongly urge  Chairman Kennard and the other Commissioners to take the initiative.

I urge Chairman Kennard, the Commissioners, and all others in the FCC, in  their  individual  and  official  capacities,  as  servants  of  the American population at large,  and in  the pursuit  of  justice,  to campaign and lobby NOW for true and just reform in the application and enforcement of the FCC mandate.  I further urge them to REFUSE to apply and enforce unconstitutional and invalid statutes and regulations. I urge them to discard "procedure" when it conflicts with true justice. In doing so, they will not only be taking the "moral high ground;" they will also be engendering the faith and confidence which they,  as keepers of a public trust, deserve.

May God bless you all, and may God bless our Republic,
 

Submitted by:
David Moore
1108 W. Main, Suite 101
Norman, OK  73069
(Comments Re:  RM-9208)

1. §301 Brief, Parts (a) and (b).

(a) The FCC does not understand the true wording and intent of the statute, or

(b) 47 U.S.C. §301 is patently unconstitutional on its face.
 

NOTE:
All common definitions of words are taken from Webster's Seventh New Collegiate Dictionary, and shall be referred to simply as "Webster's." All legal definitions of words are taken from Black's Law Dictionary with Pronunciations, Sixth Edition, and shall be referred to simply as "Black's."

CREATION AND PURPOSE OF THE FCC

47 CFR Sec. 0.405 Statutory Provisions
    The following statutory provisions, AMONG OTHERS, will be of interest to PERSONS HAVING BUSINESS with the Commission [emphasis added]:
     (a) The Federal Communications Commission was created by the Communications Act of 1934, 48 Stat. 1064, June 19, 1934, as amended, 47 U.S.C. 151-609.
     (b) The Commission exercises authority under the Submarine Cable Landing Act, 42 Stat. 8, May 27, 1921, 47 U.S.C. 34-39....
     (c) The Commission exercises authority under the Communications Satellite Act of 1962, 76 Stat. 419, August 31, 1962, 47 U.S.C. 701-744.
      (d) The Commission operates under the Administrative Procedure Act, 60 Stat. 237, June 11, 1946, as amended, .... the provisions of the Administrative Procedure Act now appear as follows in the Code:

     Administrative Procedure Act     5 U.S.C.

 Sec. 2-9  - 551-558
 Sec. 10 - 701-706
 Sec. 11 - 3105, 7521, 5362, 1305
 Sec. 12 - 559

47 U.S.C. Sec. 151 Purposes of Chapter; Federal Communications Commission Created

For the purpose of regulating interstate and foreign commerce in communication by wire and radio.. there is created a commission to be known as the "Federal Communications Commission"....

The common meaning of the word "interstate" is "of, connecting, or existing between two or more states...."

"Commerce," in this context, means "the exchange or buying and selling of commodities on a large scale involving transportation from place to place."

"Foreign" means "situated outside a place or country."

When thinking of "foreign commerce," most people would imagine trade with China or Spain.  However, definitions in law are often different from commonly understood definitions, as we shall shortly see.

Black's has separate definitions for "foreign," "foreign nations," "foreign states," "foreign commerce,"  "commerce with foreign nations," "nation," "country," "interstate," "commerce," "interstate commerce," "interstate and foreign commerce," and "state."  The serious researcher should examine all of these definitions, as their thorough study could easily fill an entire book, and will not be attempted here.

In Black's we find:

Interstate commerce.  Traffic, intercourse, commercial trading, or the transportation of persons or property between or among the several states of the Union, or from or between points in one state and points in another state; commerce between two states, or between places lying in different states....

Interstate and foreign commerce.  Commerce between a point in one State and a point in another State, between points in the same State through another State or through a foreign country, between points in a foreign country or countries through the United States, and commerce between a point in the United States and a point in a foreign country or in a Territory or possession of the United States, but only insofar as such commerce takes place in the United States.  The term "United States" means all of the States and the District of Columbia.  19 U.S.C.A. Sec. 10102.

What is the difference between a state (not capitalized) and a State (capitalized)?  Are they the same as one of the "several states of the Union"?  Why is the word "state" capitalized in one place and not in another?  What is the difference between the "United States" and the "several states of the Union"?

It is no accident that the alternate use of "state," "State," "United States," and "several states of the Union" is found throughout the entire American law, as well as Black's; yet neither offer clear reasons for this important situation.  Again, a thorough study of this subject could easily fill an entire book, and will not be attempted here.  However, a clue may be found in one particular definition from Black's:

State/Foreign state.  A foreign country or nation.  The several United States are considered 'foreign' to each other except as regards their relations as common members of the Union.

Even further research indicates that people living in "the several states of the Union" are not subject (except in specific, limited cases) to the laws of the "United States," any more than they are subject to the laws of France!  (The astute researcher will notice that the definition above does not mention the "several states of the Union," but instead mentions "the several United States," indicating that, just as there is more than one "state," there is more than one "United States."  These concepts are quite astounding to most people and, in an effort to unravel and understand them, the unprepared researcher may rapidly develop a headache!)

If words are to have meaning, and laws made up of words are to be enforced, there must be a way to understand the meanings of the words used in the law.  Many court decisions have stated this concept, such as the following:

(The) correct format for evaluating (the) constitutionality of  (a) statute is:  is (the) expression of crime so clearly explicit that every person of ordinary intelligence may understand specific provisions thereof and determine in advance what is and is not prohibited. -- Whaley v. State, Okl. Cr., 556 P.2d 1063 (1976).

How can the law relating to the FCC be understood?  The answer lies, among other places, in the DEFINITIONS of words contained in the law itself.  Words contained in law can have meanings other than those commonly understood, as long as those definitions are PART of the law.

Therefore, "green" can be defined as "blue," as long as that definition is contained in the law, and this is all perfectly "legal."

Since 47 U.S.C. Sec. 151 uses the phrase "interstate and foreign commerce," then we will adhere to that definition, as it is different from the definition of "interstate commerce."

47 U.S.C. Sec. 152 Application of chapter [CHAPTER 5]
(a)   The provisions of this chapter shall apply to all INTERSTATE AND FOREIGN communication by wire or radio and all INTERSTATE AND FOREIGN transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided....
  (b) Except as provided in Sections 223 through 227.. .and Section 332.. .and subject to the provisions of Section 310.. and subchapter V-A of this chapter, NOTHING in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with INTRASTATE communication service by wire or radio.... [emphasis added]

• Sec. 223 - Obscene or harassing telephone calls....
• Sec. 224 - Pole attachments (connecting wires, etc. to utility  poles)
• Sec. 225 - Telecommunications services for hearing-impaired and speech-impaired individuals
• Sec. 226 - Telephone operator services
• Sec. 227 - Restrictions on use of telephone equipment
• Sec. 332 - Mobile services (such as car phones)
• Sec. 301 - License for radio communication or transmission of energy
• Subchapter V-A - Cable communications

47 U.S.C. Sec. 301 License for radio communication or transmission of energy
    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.. but not the ownership thereof....
    No person shall use or operate any apparatus for the transmission of energy for communications or signals by radio (a) 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, possession, or District; or (b) from any State, Territory or possession of the United States, of 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... EXCEPT UNDER AND IN ACCORDANCE WITH THIS CHAPTER and with a license in that behalf granted UNDER THE PROVISIONS OF THIS CHAPTER.   [emphasis added]

If the purpose of the FCC is to regulate "interstate and foreign commerce," and the provisions of 47 U.S.C. Chapter 5 "apply to all interstate and foreign communication," and NOT "intrastate communication," then how can a person be forbidden to broadcast "from one place in any State.. .to another place in the same State" without first being granted a license?

The key to understanding Section 301 lies in the definitions found in Section 153, and an understanding of the word "includes."

47 U.S.C. Sec. 153 Definitions
    (e) "Interstate communication" or "interstate transmission" means communication or transmission (1) from any State, Territory or possession of the United States (other than the Canal Zone), or the District of Columbia, (2) from or to the United States to or from the Canal Zone, insofar as such communication or transmission takes place within the United States, or (3) between points within the United States but through a foreign country; but shall not, with respect to the provisions of subchapter II of this chapter (other than Section 223 of this title), include wire or radio communication between points in the same State, Territory, or possession of the United States, or the District of Columbia, through any place outside thereof, if such communication is regulated by a State commission....
    (cc)     "Station license", "radio station license", or "license" means that instrument of authorization REQUIRED BY THIS CHAPTER or the rules and regulations of the Commission made PURSUANT TO THIS CHAPTER....  [emphasis added]

The question is: how can a person be forbidden to broadcast "from one place in any State... to another place in the same State"?

47 U.S.C. Sec. 153 Definitions
    (g) "United States" means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone....

Means.  Usage 2:  (1):  to have in mind as a purpose:  INTEND (2):  to serve to convey, show, or indicate:  SIGNIFY...

47 U.S.C. Sec. 153 Definitions
    (v) "State" includes the District of Columbia and the Territories and possessions....

But, one might say, aren't Texas and Ohio "States"?  Doesn't this definition "include" them by inference, along with the other 48 "several states of the Union"?

The answer once again is a resounding NO!

Let us examine the words "include" and "includes."

According to Black's:

Include.  (Lat. inclaudere, to shut in, to keep within.)  To confine within, hold as in an inclosure, take in, attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Term may, ACCORDING TO CONTEXT, express an enlargement and have the meaning of "and" or "in addition to," or merely specify a particular thing already included within general words theretofore used.  "Including" within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation.  (emphasis added)

From the "Legal Thesaurus," Deluxe Edition, by William C. Burton, MacMillan Publishing Company:

Include, verb -- absorb, (Lat.) "adscribere," be composed of, be formed of, be made up of, begird, boast, bound, bracket, circumscribe, classify, close in, combine, compass, (Lat.) "complecti," comprehend, (Lat.) "comprehendere," consist of, consolidate, contain, cover, embody, embrace, encircle, encompass, engird, envelop, girdle, hold, incorporate, involve,
merge, put a barrier around, span, subsume, surround, take in, unify, unite.

Included.  See "Including".

Including is sometimes misused for "namely."  But it should not be used to introduce an exhaustive list, for it implies that the list is only partial.  In the words of one federal court, "It is hornbook law that the use of the word 'including' indicates that the specified list... is illustrative, not exclusive..."  See "Including but not limited to."

Including but not limited to; including without limitation.  In "drafting", these cautious phrases are often essential to defeat three canons of contruction:  (Lat.) "inclusio unius est exclusio alterius" ("to express one thing is to exclude the other"), (Lat.) "noscitur a sociis" ("it is known by its associates"), and (Lat.) "ejusdem generis" ("of the same class or nature")     Even though the word "including" itself means that the list is merely exemplary and not exhaustive, the courts have not invariably so held.  So the longer, more explicit variations may be considered necessary....

In the context of 47 U.S.C. and the FCC, the "United States" includes ONLY the District of Columbia and the Territories and possession of the United States.

This brings up an interesting situation in which it can be argued that "interstate and foreign commerce" and "communication" or "transmission" takes place ONLY among the District of Columbia and the Territories and possessions!  Therefore, commerce, communication, or transmission between someone in Texas and someone in Kansas is not "interstate"! This may, however, be pushing the legal "envelope" a bit, and should, for now, be considered only as icing on what appears to be a well-defined cake.

CONCLUSION OF (a)

The FCC exists solely to regulate "interstate and foreign commerce"; that is, commerce between states and other states and/or countries. Pertaining to low-power radio broadcasters and stations, 47 U.S.C. Chapter 5 applies ONLY to interstate and foreign communication or transmission, and clearly does NOT apply to commerce, communication, or transmissions taking place solely within the confines of one of the several states of the Union.

(b).  47 U.S.C. §301 is patently unconstitutional on it's face.

The FCC has in the past brought civil and criminal actions pursuant to 47 U.S.C. §510, alleging a "willful and knowing intent" to violate 47 U.S.C. §301. The FCC has contended that radio transmissions were made from one place in a State to another place in the same State, a solely "intrastate" activity.  The FCC, in these actions, has not alleged that such broadcasts were related in any way to "interstate and foreign commerce," which are the Constitutionally mandated boundaries of the authority delegated by Congress to the Federal Communications Commission (FCC).  Thus, the allegations of the FCC's actions make it clear that the FCC seeks to make penal acts occurring within intrastate commerce, i.e., that specifically occurring wholly within a "State."

The FCC's complaints have been clearly based upon subsection (a) of §301 which proscribes radio transmissions "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, possession or
District" without first having obtained a license from the Federal Communications Commission.

Section 301(a) is unconstitutional in that it attempts to regulate activity and make penal that which is beyond the foreign and interstate commerce powers of Congress granted to it via Art. 1, §8, cl. 3 of the Constitution for the united States.

A. Congressional Interstate Commerce Powers.

The police power is vested in the states and not the federal government; see Wilkerson v. Rahrer, 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891) (the police power "is a power originally and always belonging to the states, not surrendered to them by the general government, nor directly restrained by the constitution of the United States, and essentially exclusive"); Union National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods & Sons v. Carl, 75 Ark. 328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655 (1915); Shealey v. Southern Ry. Co., 127 S.C. 15, 120 S.E. 561, 562 (1924) ("The police power under the American constitutional system has been left to the states. It has always belonged to them and was not surrendered by them to the general government, nor directly restrained by the constitution of the United States.. Congress has no general power to enact police regulations operative within the territorial limits of a state"); and  McInerney v. Ervin, 46 So.2d 458, 163 (Fla. 1950). Further, there are no common law offenses against the United States; see United States V. Hudson, 7 Cranch (11 U.S.) 32 (1813); United States v. Coolidge, 1 Wheat. (14 U.S.) 415 (1816); United States v. Britton, 108 U.S. 199, 206, 2 S.Ct. 531, 535 (1883); Manchester v. Massachusetts, 139 U.S. 240, 262-63, 11 S.Ct. 559, 564 (1891); United States v. Eaton, 144 U.S. 677, 687, 12 S.Ct. 764, 767 (1892); and United States v. Flores, 289 U.S. 137, 151, 53 S.Ct. 580, 582 (1933). But within the territories and insular possessions, Congress has the power of a state legislature; see Berman
v. Parker, 348 U.S. 26, 31, 75 S.Ct. 98, 102 (1954); and Cincinnati Soap Co. v. United States, 301 U.S. 308, 317, 57 S.Ct. 764, 768 (1937). And Congress' power to make an act penal committed within a state of the American Union must have some relation to its delegated powers; see United States v. Hall, 98 U.S. 343, 345-46 (1879); and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617 (1892).

Perhaps the greatest power of Congress to enact legislation applicable within the jurisdiction of the states is its power to control interstate commerce, and every lawyer and judge is familiar with the case precedence elucidating the breadth of this power. Before 1936, the Supreme Court construed Congressional interstate commerce powers in a very restrictive sense; see Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529 (1918); Bailey v. Drexel Furniture Company, 259 U.S. 20, 42 S.Ct. 449 (1922); Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922); and United States V. Butler, 297 U.S. 1, 56 S.Ct. 312 (1936). But since the Great Depression, Congress has enacted legislation to expressly control activity affecting interstate commerce, and the Supreme Court has sanctioned such legislation and held it constitutional; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348 (1964); and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377 (1964). But even today, this power is not limitless; see United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624 (1995). Because of the apparently grey parameters of this congressional power which is explained in terms of malleable concepts, it consequently is important to briefly discuss some of the major features of this power.

In United States v. Steffens, 100 U.S. 82 (1879), the Supreme Court was required to determine the constitutionality of certain statutes proscribing the fraudulent use of trademarks. Here, Congress had adopted certain legislation regarding trademark registration in 1870, and it supplemented that legislation in 1876 by an act making it penal to fraudulently use a registered trademark. In this case, parties from New York and Ohio who had been indicted for alleged violations of this latter act challenged its constitutionality. The Court in its decision noted that Congress had no constitutional authority regarding trademarks and the protection of trademarks; such being the case, the act in question could have a constitutional foundation only if it was based on Congressional power over interstate commerce. But, the problem regarding the act before the Court arose from the fact that nothing in the act itself mentioned interstate commerce or even attempted to connect this particular law with any regulation of such commerce. Addressing this deficiency, the Court stated:

    "[T]here still remains a very large amount of commerce, perhaps the largest, which, being trade or traffic between citizens of the same State, is beyond the control of Congress. "When, therefore, Congress undertakes to enact a law, which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the statute, or from its essential nature, that it is a regulation of commerce with foreign nations, among the several States, or with the Indian Tribes. If it is not so limited, it is in excess of the power of Congress. If its main purpose be to establish a regulation applicable to all trade; to commerce at all points, especially if it is apparent that it is designed to govern the commerce wholly between citizens of the same State, it is obviously the exercise of a power not confided to Congress,"  100 U.S., at 96-97.

Since this trademark law did not confine its operation to interstate commerce, it was held unconstitutional. See also United States v. DeWitt, 76 U.S. (9 Wall.) 41 (1870); and United States v. Fox, 95 U.S. 670 (1878)

A similar question was presented to the Court in Illinois Central Railroad Company v. McKendree, 203 U.S. 514, 27 S.Ct. 153 (1906). Here, Congress adopted an act to suppress cattle diseases, and made the act applicable to cattle shipped in interstate commerce; the act also permitted the Secretary of Agriculture to implement regulations for enforcement of the act. Pursuant to this authority, the Secretary promulgated a regulation which established a quarantine district in the southern portion of the continental United States, and prohibited shipments of cattle from the quarantine district to points outside and north thereof. In this case, the railroad company shipped infected cattle from a part of the State of Tennessee in the quarantine district to a point in Kentucky outside the district; these cattle then infected other cattle and the owner sued for damages. The railroad company's contention that the regulations were unconstitutional prevailed in the Supreme Court, where the Court stated:

    "We think the defendant was right in the contention that, if the act of February 2, 1903, was constitutional, and rightfully conferred the power upon the Secretary of Agriculture to make orders and regulations concerning interstate commerce, there was no power conferred upon the Secretary to make regulations concerning intrastate commerce, over which Congress has no control,"  203 U.S., at 527. "The terms of order 107 apply to all cattle transported from the south of this line to parts of the United States north thereof. It would, therefore, include cattle transported within the state of Tennessee from the south of the line as well as those from outside that state; there is no exception in the order, and in terms it includes all cattle transported from the south of the line, whether within or without the state of Tennessee ....  But the order in terms applies alike to interstate and intrastate commerce,"  203 U.S., at 528.

It was because the regulation in question was not limited to interstate commerce and was broader than such and encompassed intrastate commerce that it was found unconstitutional.

In Howard v. Illinois Central Railroad Company, 207 U.S. 463, 28 S.Ct. 141 (1908), the Supreme Court found unconstitutional a Congressional act which regulated both intrastate and interstate commerce. Here, Congress adopted legislation ("Employers' Liability Act") which denied the defense of contributory negligence in tort actions brought by employees against employers who were common carriers in interstate commerce.  In this wrongful death action, the railroad challenged the constitutionality of the act, arguing that its scope covered both intrastate and interstate commerce in that it attached liability to interstate carriers regardless of whether the employee involved or the accident was similarly involved in interstate commerce. In holding this act unconstitutional, the Court held:

    "The act, then, being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes subjects wholly outside of the power of Congress to regulate commerce,"  207 U.S., at 498.
    "As the act thus includes many subjects wholly beyond the power to regulate commerce, and depends for its sanction upon that authority, it results that the act is repugnant to the Constitution," 207 U.S., at 499.

The case of Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922), is very similar to United States V. Steffens, supra, in that the act in question was also devoid of an interstate commerce foundation. Here, Congress enacted legislation to tax certain transactions involving futures contracts and to regulate boards of trade, but the act contained nothing in it basing the act on Congressional interstate commerce powers. Members of the Board of Trade of Chicago challenged the constitutionality of this act, arguing that Congress had no innate authority of its own to regulate boards of trade and that the only power of Congress to enact such legislation would be its interstate commerce powers with which this act was totally unconnected. The Supreme Court agreed and held the act unconstitutional.

The lesson of the above cases is clear. United States v. Steffens and Hill V. Wallace, supra, stand for the proposition that if Congressional legislation can be valid only under the power of Congress to regulate interstate commerce, the statute itself must express its relationship to interstate commerce; in the absence of such statutory expression, the act is not one based on Congressional interstate commerce powers. The cases of Illinois Central Railroad Company V. McKendree and Howard v. Illinois Central Railroad Company, supra, demonstrate that certain laws statutorily connected to interstate commerce can be unconstitutional if they are overbroad and encompass both intrastate and interstate commerce.

All will readily admit that Congress can adopt legislation to regulate and control interstate commerce as well as that which "affects" interstate commerce. But, it is equally true that there is a boundary or limit to Congressional power to regulate those activities which "affect interstate commerce."  Simply stated, acts "affecting interstate commerce" do not include all human activity, and there is a sizeable amount of human activity which is neither interstate commerce or acts "affecting" interstate commerce; see United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190 (1953). It is the "de minimis" rule which describes and defines this outer boundary of the power of Congress to regulate activities "affecting interstate commerce." To fall within this rule, an act must have some effect or impact on interstate commerce. Any act which does not affect interstate commerce is outside the scope of this Congressional power.

There exists a line of cases clearly demonstrating just some of the acts which are beyond and outside the "de minimis" rule.  In United States v. Critchley, 353 F.2d 358 (3rd Cir. 1965), an union official was indicted for a Hobbs Act violation, the facts being based upon the defendant making a complaint against a roofing company for the sole purpose of soliciting a bribe. His conviction was reversed on the grounds that this act was not one which affected interstate commerce, and there was no other evidence offered to show an interference or obstruction of interstate commerce.  In Houchin v. Thompson, 438 F.2d 927, 928-29 (6th Cir. 1970), at issue was whether certain workers in a commercial office building were covered by the provisions of the Fair Labor Standards Act. The court found that these workers were not engaged in activities affecting interstate commerce, so they were not covered by the act. Regarding the "de minimis" rule, the Court stated:

    "Where some inconsequential incident of interstate commerce happens to result from the general conduct of a fundamentally intrastate business, the rule of de minimis is applicable and the Act does not apply."

In National Labor Relations Board v. Clark, 468 F.2d 459, 466 (5th Cir. 1972), an attempt was being made to subject a nursing home in Alabama to federal labor laws. Here, the only nexus of the home to interstate commerce was a $1,700 purchase of supplies from a company whose main office was in Atlanta, Georgia; but, it was not shown how these supplies were shipped to the nursing home. Regarding the "de minimis" rule, the Court held:

    "In passing the National Labor Relations Act, Congress intended to provide the Board with the fullest jurisdictional power constitutionally permissible under the Commerce Clause .... If intrastate activity has more than a de minimis effect on interstate commerce, it affects commerce within the meaning of the Act."

The Court concluded here that there was no evidence showing that the home's activities affected interstate commerce: See also Austin Road Company v. O.S.H.A., 683 F.2d 905 (5th Cir. 1982).

In United States v. Merolla, 523 F.2d 51 (2nd Cir. 1975), a conviction under the Hobbs Act was reversed upon a showing that the underlying facts of the case demonstrated no "effect" upon interstate commerce. The defendant in this case had contracted with the victim to build a car showroom for an automobile dealership, but when work on the showroom was jeopardized, the defendant beat the victim and extorted money and property from him. Nonetheless, under the facts of this case, the Court held that there was not a sufficient jurisdictional nexus in the facts to support a Hobbs Act conviction.

In United States v. Elders, 569 F.2d 1020, 1023-24 (7th Cir. 1978), Elders' conviction under the Hobbs Act was reversed also on the basis that the facts involved in the case showed no "de minimis" connection to interstate commerce. In essence, Elders, an employee of a municipality, sought and obtained a series of "kickbacks" or bribes from a tree trimming company engaged in work for the city. In its opinion, the Court summarized the requirements for a federal interstate commerce prosecution as follows:

    "In each case, however, a nexus has been required between the extortionate conduct and interstate commerce in order to establish federal jurisdiction.  That nexus may be de minimis .. but it must nonetheless exist.

A federal indictment was dismissed in United States v. Mennuti, 639 F.2d 107 (2nd Cir. 1981), on the grounds that the defendants' conduct in the case had no "de minimis" effect on interstate commerce; the facts involved the bombing of a residential home. In another attempted bombing case, convictions were reversed on the grounds that the events of which the government complained had no minimal connection to interstate commerce; see United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979).  And in United States v. Voss, 787 F.2d 393 (8th Cir. 1986), it was held that an attempted arson of a home, even though potentially held for commercial activity, involved no "de minimis connection with interstate commerce; see also Gramercy 222 Residents Corp. v. Gramercy Realty Assoc., 591 F.Supp. 1408 (S.D.N.Y. 1984).

The sum and substance of the above cases is that the maximum, constitutional reach of Congressional interstate commerce powers extends to regulating activities "affecting interstate commerce." The above cases are just a few instances of conduct and acts which do not affect interstate commerce, and are therefore beyond Congressional power. And there are many more countless acts encountered in everyday life which are obviously beyond the control of Congress under the commerce clause; Congressional attempts to control these many acts outside this power would be unconstitutional.

Of course, all would recognize the abundance of cases where federal criminal laws have been upheld against commerce clause challenges, many of which concern guns and drugs; cases of this nature are cited in abundance in the annotations to Art. 1, §8, cl. 3, and typical examples of commerce clause construction are found in Hodel v. Virginia Surface Mining Red. Ass'n., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360 (1981); and American Life League V. Reno, 47 F.3d 642, 647 (4th Cir. 1995) ("A federal statute is valid under the Commerce Clause if Congress (1) rationally concluded that the regulated activity affects interstate commerce and (2) chose a regulatory means reasonably adapted to a permissible end"). However, in United States v. Lopez, ___ U.S. ___ 115 S.Ct. 1624, 1629-30 (1995), the Supreme Court took the opportunity to precisely define the breadth of the commerce clause and held as follows:

    "Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. [cites omitted] First, Congress may regulate the use of the channels of interstate commerce. [cites omitted]
    Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from  intrastate activities. [cites omitted] Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. [cites omitted]"

It is the decision in Lopez which breathes new life back into commerce clause challenges. Here, the Supreme Court has redefined the maximum reach of the commerce clause to that which "substantially affects interstate commerce." That "ancient" decisional authority of the seventies and early eighties which many had thought was no longer applicable is now very relevant today, including that "old" authority, the "de minimus" rule.

B. The Federal Communications Act.

In an effort to establish an uniform national network of licensing for radio stations, Congress adopted this law in 1934 and made the licensing process applicable only to those stations involved in interstate commerce.

Prior to 1982, the "preamble" portion of 47 U.S.C., §301 simply stated that Congress intended "to maintain control of the United States over all the channels of interstate and foreign radio transmission." Prior to 1982, subsection (a) of §3Ol limited its intrastate reach to those areas plainly within the territorial jurisdiction of the United States as evidenced by the following language:

    "(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."

But pursuant to P.L. 97-259, 96 Stat. 1091,  adopted in 1982, Congress struck the phrase "interstate and foreign commerce" from the "preamble" portion in the first sentence of this section and changed subsection
(a) to read as follows:

    "(a) 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, possession, or District."

Clearly, the claim to control the airwaves of this entire country, both intrastate and interstate,  is only a recent legislative invention arising from the 1982 act.

It is remarkable that there has been precious little litigation, civil or criminal, regarding the scope of this law. There are very few reported criminal prosecutions under the pre-1982 version of this law, and the most notable are United States V. Betteridge, 43 F.Supp. 53 (N.D.Ohio 1942), which involved a radio transmission receivable on Lake Erie, and United States V. Brown, 661 F.2d 855 (l0th Cir. 1981), which involved a radio transmitter powerful enough to cross state lines. It must be remembered that these two cases were prosecutions under a law which clearly was tied to the constitutional limits of Congressional interstate commerce powers and they thus have no relevance to the issue raised herein.

The simple fact of the matter is that §301(a) is unconstitutional under the Lopez rationale. The maximum breadth of this power extends only to that which substantially affects interstate commerce (this might require re-examination of some of the cases discussing the "de minimus" rule). The full breadth of the interstate commerce power is already encompassed within §301(d), which requires those radio stations having an effect beyond the borders of the state where it is located to be licensed.  Because §301(d) already reaches the maximum extent of this federal power, the 1982 amendment to §301 can only be construed to apply to purely intrastate commerce in its classical sense. This, of course, is unconstitutional.

The only other manner by which Congress can exert any type of control over intrastate commerce is if it makes a legislative finding that all intrastate commerce in the activity to be regulated affects interstate commerce. However in reference to the 1982 expansion of the relevant provisions of §301, no such finding was made. In fact, the 1982 amendment was adopted for the sole purpose of assisting criminal prosecutions under the Communications Act:

     "The present statutory ambiguity imposes wasteful burdens on the Commission and various United States Attorneys, particularly with regard to prosecution of Citizen Band (CB) radio operators transmitting in violation of FCC rules. Typically in such a case, the defendants concede the violation, but challenge the Federal Government's jurisdiction on the ground that the CB transmission did not cross state lines. To refute this argument, the Commission invariably is asked to furnish engineering data and experts witnesses, often at considerable expense. In most instances, once the expert evidence is made available, the defendants plead guilty and the case terminated.
     "The provision would end these wasteful proceedings. Further, it would make Section 301 consistent with judicial decisions holding that all radio signals are interstate by their very nature. See, e.g., Fisher's Blend Station Inc. V. Tax Commission of Washington State, 197 U.S. 650, 655 (1936)." See 1982 U.S.C.A.N.S. 2275-76.

Thus the reason for expanding §301 to encompass purely intrastate commerce was not based upon the requisite Congressional finding but was instead done to achieve an ulterior purpose of assisting criminal prosecutions and making them easier. The reason why such prosecutions needed to be made easier arose from cases where the defense insisted upon proof that the prosecution was really one which fell within the scope of federal laws. Consequently, because there has been no congressional finding regarding the impact of intrastate activities upon this type of interstate commerce, §301(a) cannot be justified as constitutional; see United States v. ORS, Inc., 997 F.2d 628 (9th Cir. 1993).

For the foregoing reasons, §301(a) is plainly and without a doubt unconstitutional.
 

2. PRA Violations Brief

A. The Legislative History of the Paperwork Reduction Acts.

President Roosevelt commissioned the Central Statistical Board to study the problem of governmental paperwork on May 16, 1936, (*1) and the Board's study thereafter became the basis for the Federal Reports Act of 1942 (herein "FRA") (*2) which constituted the first attempt by Congress to regulate the information collection activities of federal agencies. The FRA granted authority to the Bureau of the Budget to approve the requests of federal agencies seeking to collect information, (*3) and it prohibited any federal agency from engaging in such conduct if the Director did not approve the proposed collection of information. (*4) The act granted rule the making authority necessary for its implementation, (*5) and on February 13, 1943, such rules were promulgated. (*6) These rules clearly encompassed both forms used by federal agencies to collect information as well as agency regulations.

A weak attempt to strengthen the FRA was made in 1973, (*7)  and revisions to Circular No. A-40 which implemented the FRA were made on May 3, 1973, again on February 10, 1976, and finally on November 5, 1976. In late 1974, Congress established a Commission on Federal Paperwork and directed it to study and report needed changes in the laws, regulations and procedures which would insure that information essential for the functioning of federal agencies was obtained with a minimal amount of burden, duplication and cost. (*8)

On October 3, 1977, after lengthy and careful study of the matter of paperwork requirements mandated by federal agencies, the Federal Paperwork Commission submitted the last of its many reports. (*9) This Report concluded that while the existing FRA seemed sufficient to control the use of forms by federal agencies to collect information, it was insufficient to control the source for the use of such forms, i.e., agency regulations. (*10) Prior to this report, it had been suggested that Congress clarify and strengthen the FRA "to allow the clearance agency to challenge the need for regulatory information."(*11) The Commission readily perceived that changing the rule making process of federal agencies was essential to reduce paperwork burdens:

    "Rulemaking is, in essence, legislation by executive departments and agencies. Agency rules and regulations have the full force and effect of law, and translate broad congressional mandates into operational programs and practices.

     "Most of the specific reporting and recordkeeping requirements imposed on the public stem from such rules and regulations." (*12)

Still later, another report concluded as follows:

     "The Act is not clear on its coverage of a major portion of the paperwork burden-- recordkeeping requirements-- although recordkeeping is covered in 0MB Circular A-40, the primary guideline instruction, as well as other 0MB and GAO guidelines... Not all agencies covered by the Federal Reports Act comply fully with its requirements.

     "For years, several of the regulatory agencies, particularly the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC) held themselves exempt, not always with success, from the reports clearance control of the Bureau of the Budget.  The FTC took the position that its law enforcement responsibilities, mandated by the Congress, required the collection of information from business entities and industries which was for it alone to determine." (*13)

While legislation was proposed in 1976 to address the problem of federal paperwork burdens, it was not until 1979 that a major effort was undertaken in this respect. In hearings upon a paperwork reduction bill introduced in the Senate, Senator Lawton Chiles stated:

     "While 0MB is required to supervise the approval or disapproval of agency requests within 60 days, individuals, businesses, and State and local governments will be told they do not need to answer requests not acted upon by 0MB.

     "Forms without an 0MB number on them will be 'bootleg forms' that the public can ignore." (*14)

And while Senator Chiles stated the purpose of this proposed legislation, Senator Lloyd Bentson explained some of the problems the legislation was designed to address:

     "Each of these reporting requirements, all of which have been approved by either 0MB or GAO under the provisions of the Federal Reports Act, creates an average of ten separate forms-- and the staff at the GAO reported finding one OMB-approved reporting requirement that actually created 90 separate forms." (*15)

Senator Bentson's sentiments in this regard were echoed by Gerald L. Hegel, of the Association of Records Managers and Administrators:

     "The Federal Paperwork Commission addressed the issue of statutory recordkeeping and reporting requirements and found that, not statutes, but agency rules and regulations comprised the bulk of the paperwork burden. For example, in the Occupational Safety and Health Act, there are five references to reports from employers, but the Commission identified more than 400 reporting and recordkeeping references in OSHA regulations. Bear in mind that OSHA is not an isolated example." (*16)

Plainly, this legislative history reveals a Congressional intent to make not only agency forms but also agency regulations subject to the control of the Office of Management and Budget ("0MB"). The  intent and purpose of the proponents of such a law was to force federal agencies to comply by submitting their information collection requests to OMB for approval, and this approval by OMB was to be evidenced by the proper display of an OMB control number upon the item seeking information. If an agency did not comply, then the law was to have some "teeth": unapproved collections of information were to be considered "bootleg" requests that the public could ignore with impunity.

B. The 1980 and 1995 Paperwork Reduction Acts.

On December 11, 1980, the Paperwork Reduction Act of 1980 (herein "PRA") was approved; see Public Law 96-511, 94 Stat. 2812, previously codified at 44 U.S.C., §§3501, et. seq.  This act in substance required all federal agencies to submit to the Director of O.M.B. all "collections of information" for his approval and the assignment of O.M.B. control numbers; see §3507.  Subsection (f) of this section provided as follows:

     "An agency shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request."

Section 3502(4) defined the term "collection of information" generally as the obtaining of facts or opinions by a federal agency "through the use of written report forms, ... reporting ... requirements, or other similar methods calling for ... answers to identical questions".  An "information collection request" was defined in §3502(11) to mean "a written report form, application form, schedule, questionnaire, reporting or record keeping requirement, or other similar method calling for the collection of information".

The chief method of securing compliance by federal agencies with this act was §3512, which provided:

     "Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject to this chapter."

Clearly just from the act itself, federal agencies were required to submit to OMB all information collections requests for its approval, which was evidenced by the display of an OMB control number. If any collection of information failed to make the required display, the public was authorized to ignore the request with impunity. Indeed, the Senate Committee on Governmental Affairs expressly so stated:

     "The purpose of this section is to protect the public from the burden of collections of information which have not been subjected to the clearance process described by section 3507.  Information collection requests which do not display a current control number or, if not, indicate why not are to be considered 'bootleg' requests and may be ignored by the public." (*17)

The Public Protection Clause of the PRA was intentionally designed to enlist the support of the American public in helping 0MB secure compliance with the commands thereof by the federal agencies. This was repeatedly stated in the many reports on this legislation, but was perhaps stated best by President Carter when he signed the bill on December 11, 1980:

     "The act I'm signing today will not only regulate the regulators, but it will also allow the President, through the Office of Management and Budget, to gain better control over the Federal Government's appetite for information from the public. For the first time it allows OMB to have the final word on many of the regulations issued by our Government. It also ensures that the public need not fill out forms nor keep records which are not previously approved by OMB."
(*18)

There can thus be no dispute that this act by clear legislative intent and express statutory provision was specifically designed to afford the American public a statutory right to refuse to provide to a federal agency information which had not been approved by OMB, and approval was to be demonstrated by the proper display upon the request of a control number. This right to refuse to provide information not approved by OMB could be exercised without running the risk of the imposition of penalties of any kind, civil or criminal.

The implementation of regulations for the PRA was hotly contested, and 54 federal agencies and 90 members of the public offered comments and criticisms of the proposed regulations. 19  The major issue of concern related to whether agency regulations, current as well as those to be promulgated in the future, were subject to the requirements of the act, the federal agencies contending that only forms were covered by the act. This contention was rejected by O.M.B., which found:

     "It is not possible to argue that OMB clearance authority is confined to forms and similar instruments ....  Many reporting requirements are enforced by means of forms, but other reporting requirements and virtually all record keeping requirements are imposed by other means, including oral surveys, guidelines, directives, and most significantly --- regulations ....  The only way all reporting and record keeping requirements can be covered by the Act is to cover these other methods for the collection of information, including regulations,"  Id., at 13667.

     "It follows that OMB has authority over reporting and record keeping requirements in rules that were in effect when the Act was passed as well as in rules subsequently issued with or without public notice and comment,"  Id., at 13668.

     "Pursuant to these authorities, the Director has concluded that all collections of information, including those mandated by regulations, must display a currently valid OMB control number," Id., at 13669.

The initial regulations for the PRA thus expressly subjected agency regulations to the PRA clearance and approval process; see 5 C.F.R., §1320.14.

The act clearly required that forms seeking the collection of information must be approved by O.M.B. and had to display O.M.B. control numbers. But, regarding the instances in which specific "reporting requirement" regulations would likewise be subject to the PRA, the report stated:

     "As discussed in connection with section 1320.7(d), any collection of information specifically contained in a regulation (such as a form printed as part of a regulation) is considered part of the collection of information requirement imposed by that regulation, and does not need an additional approval. Such a collection must display the control number assigned to the collection of information requirement in the regulation. On the other hand, a form is not considered to be 'specifically contained in' a regulation merely because the regulation refers to or authorizes the form.  A generally valid test is that the form requires independent clearance if the information collection component of the related regulation cannot be enforced without the form.  For example, if a regulation states that respondents must supply certain data 'on a form to be provided by the agency', the form must be cleared independently,"  Id., at 13682.

Stated differently, if a reporting requirement regulation simply mentions a form, both the regulation and the form must be separately approved by O.M.B.., although sometimes both will display the same O.M.B. control number.

The first regulations promulgated for the PRA on March 31, 1983 (48 Fed. Reg. 13689), 5 C.F.R., part 1320, were specific in the requirements placed upon the information collection activities of federal agencies.  Section 1320.4(a) of these regulations provided that:

     "An agency shall not engage in a collection of information without obtaining Office of Management and Budget COMB) approval of the collection of information and displaying a currently valid OMB control number and, unless OMB determines it to be inappropriate, an expiration date."

Section 1320.7 contained important definitions.  A "collection of information" was defined as including forms and reporting requirements, the latter being defined as "a requirement imposed by an agency on persons to provide information to another person or to the agency".  By the plain terms of this definition, a "reporting requirement" encompassed a regulation which required the provision of information. The "display" of OMB control numbers meant the printing of such numbers in the upper right hand corner on forms. For regulations, the "display" of the control number was required to be a "part of the regulatory text or as a technical amendment".  Section 1320.14 of these regulations plainly commanded federal agencies to obtain and display O.M.B. control numbers for agency regulations subject to the act.

Subsequent regulations for the PRA prove the above contention precisely; see 53 Fed. Reg. 16623, May 10, 1988.  Section 1320.5 of this edition of the PRA regulations provided that:

     "The failure to display a currently valid OMB control number for a collection of information contained in a current rule does not, as a legal matter, rescind or amend the rule; however, its absence will alert the public that either the agency has failed to comply with applicable legal requirements for the collection of information or the collection of information has been disapproved, and that therefore the portion of the rule containing the collection of information has no legal force and effect and the public protection provisions of 14 U.S.C. 3512 apply."

In May, 1995, Congress substantially amended the PRA in an obvious effort to rectify problems which had arisen under the earlier 1980 act. (*20) Such apparently confusing terms like "collection of information requests" and "collection of information requirements" were avoided in this new act, which contained at §3502(3), the following definition of the term "collection of information":

     "(3) the term 'collection of information'--
     "(A) means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either -
     "(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or
     "(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes...

Under §3507 of the new act, Congress has continued its prior prohibition that no federal agency may solicit information without approval of the Director of OMB, which is indicated by "a control number to be displayed upon the collection of information." Like its predecessor, the new act also contains a public protection provision in §3512:

     "(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this chapter if -
     "(1) the collection of information does not display a valid control number assigned by the Director in accordance with this chapter; or
     "(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.
     "(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable hereto."

Under the new PRA regulations, a "collection of information" is defined in 5 C.F.R., §1320.3(c), as "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons ... 'Collection of information' includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. As used in this Part, 'collection of information' refers to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate."  There can be no doubt that existing agency regulations are subject to the PRA because §1320.12 of the PRA regulations clearly commands that they be submitted to OMB for approval.

This legislative and regulatory history plainly demonstrates that collections of information do appear within regulations adopted by various federal agencies and consequently, those regulations must be approved by OMB. Further, regulations subject to the PRA must display a control number, either in the text of the regulation itself or in a preamble to that text; see 5 C.F.R., §1320.3(f).

C. Litigation Under the PRA.

One of the first substantive appellate decisions acknowledging the statutory right of the public to "regulate the regulators" was United States v. Smith, 866 F.2d 1092, 1098-99 (9th Cir. 1989). Here, a miner working on federal lands was charged with and convicted of failing to submit to the Forest Service's District Ranger a "Plan of Operations" commanded by a Forest Service regulation published at 36 C.F.R., §228.4.

The Ninth Circuit noted that neither the form or regulation in question displayed a control number required by the PRA and its regulations. In defining the parameters of the PRA, that court held:

     "This definition encompasses agency regulations that require disclosure of information to the government and that call for the disclosure or reporting of information through answers to standardized (identical) questions."

Here, because the Forest Service's applicable "collections of information" lacked the display of OMB control numbers, the Ninth Circuit reversed Smith's conviction as mandated by §3512.

Within a month of the decision in Smith, the PRA defense was pleaded in another case also involving a miner on federal lands who was similarly being charged with a failure to submit a "Plan." On appeal from the conviction in that case, the Court in United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990), held that compliance with the PRA was a jurisdictional prerequisite to the imposition of criminal penalties. Since the regulation at issue in Hatch likewise failed to display a control number, Hatch's conviction was reversed.

In Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir. 1991), at issue was a regulation promulgated by the Department of Health and Human Services requiring regulated entities to make available to the agency upon request certain "self evaluation reports." Here, the Court concluded that even this regulation which only indirectly required that information eventually be made available to an agency was within the scope of the PRA and subject to OMB approval.

The Supreme Court has had the opportunity to address the PRA in Dole v. United Steelworkers of America, 494 U.S. 26, 110 S.Ct. 929 (1990). When the regulations for the PRA were first adopted in March, 1983, those rules required federal agencies to submit to OMB not only those "information collection requests" which were to be submitted directly to the agencies, but also those requests concerning the provision of information to parties other than the federal agencies. These latter types of "disclosure" regulations were at issue in Dole, and of course the Court held that OMB did not have authority over such disclosure rules. 21 But, in making this decision, the Court was required to define precisely what types of "information collection requests" were within the authority of OMB:

     "The common-sense view of 'obtaining or soliciting facts by an agency' is that the phrase refers to an agency's efforts to gather facts for its own use and that Congress used the word 'solicit' in addition to the word 'obtain' in order to cover information requests that rely on the voluntary cooperation of information suppliers as well as rules which make compliance mandatory," 110 S.Ct., at 934.

     "If 'reporting and recordkeeping requirement' is understood to be analogous to the examples surrounding it, the phrase would comprise only rules requiring information to be sent or made available to a federal agency...," Id., at 935.

     "When OMB approves an information collection request, it issues a control number which is placed on all forms. If a request does not receive OMB approval, it is not issued a control number and the agency is prohibited from collecting the information... In addition, if the agency nevertheless promulgates the paperwork requirement, members of the public may ignore it without risk of penalty... However, this protection of the public is applicable only to information gathering rules," Id., at 937.

     "[T]he public is protected under the Paperwork Reduction Act from paperwork regulations not issued in compliance with the Act, only when those regulations dictate that a person maintain information for an agency or provide information to an agency," Id., at 937.

The principle of law which manifests itself within these four cases may be succinctly stated. As the Supreme Court concluded in Dole, a regulation subject to the PRA is one which commands that information be provided directly to a federal agency. The decision in Action Alliance expands the definition of those regulations within the scope of the PRA to those which mandate availability of information to an agency. And both Smith and Hatch demonstrate the consequence of the failure of a regulation subject to the PRA to display a control number: no civil or criminal penalty for a violation of the regulation may be imposed.

There have been some decisions regarding the application of the PRA to various tax forms and instruction booklets. For example, in United States v. Bentson, 947 F.2d 1353 (9th Cir.  1991), and United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991), those defendants sought to apply the Dole-Smith-Hatch rule to the instruction booklet for tax form 1040. But here, the very same Circuit which created the Smith-Hatch rule rejected such challenges ("The PRA was not meant to provide criminals with an all-purpose escape hatch... If, in enacting the PRA, Congress had intended to repeal 26 U.S.C., §7203, it could have done so explicitly;" see Hicks, 947 F.2d, at 1359).

In United States v. Dawes, 951 F.2d 1189, 1192 (10th Cir. 1991), that court was confronted with the PRA issue being raised by these convicted tax crime defendants. Here, the Tenth Circuit declared that income tax regulations "simply assist taxpayers to complete tax forms" and "are subsidiary to and mere administrative appendages of the tax form. They function only to aid the taxpayer in providing the information required by the 1040 form." For this reason, the Dawes court concluded that tax regulations don't need OMB control numbers. See also United States v. Neff, 954 F.2d 698 (11th Cir. 1991). These cases dealing with federal income tax legislation, which is a far different legislative scheme than that involving FCC statutes and regulations, are readily distinguishable for this reason.

D. Compliance by the FCC with the PRA.

The FCC regulations which are relevant for this case are codified at 47 C.F.R., part 73. Pursuant to the PRA regulations, the FCC has adopted a tabular list of its collections of information which have been assigned OMB control numbers; see 47 C.F.R., §0.408. This list identifies all of the part 73 FCC regulations which have been assigned control numbers, and those regulations are 47 C.F.R., §§ 73.30, 73.37, 73.45, 73.51,
73.61, 73.68, 73.69, 73.99, 73.158, 73.661, 73.687, 73.932, 73.961,
73.1125, 73.1207, 73.1212, 73.1250, 73.1350,  73.1510, 73.1560,
73.1590, 73.1610, 73.1615, 73.1620, 73.1635, 73.1680, 73.1690, 73.1740,
73.1820, 73.1870, 73.1920, 73.1930, 73.1942, 73.1943, 73.2080, 73.3523, 73.3525B, 73.3526, 73.3527, 73.3538, 73.3544C, 73.3550, 73.3588,
73.3589, 73.3594, and 73.3613. Noticeably absent from this list are the assignments of OMB control numbers for the regulations at issue here, §§ 73.3511, 73.3512, 73.3513 and 73.3514. The FCC is acutely aware of the requirement for its regulations to have control numbers, because it admits as much at 47 C.F.R., §0.408:

     "Notwithstanding any other provisions of law, no person shall be subject to any penalty for failure to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number."

Does the FCC understand precisely which of its regulations must be approved by OMB? An examination of certain regulations which do have these control numbers more than adequately demonstrates that it does. For example, §73.51 contains the following collection of information:

     "(c) Applications for authority to operate with antenna input power which is less than nominal power and/or to employ a dissipative network in the antenna system shall be made on Form 302."
 
Section 73.68 contains several collections of information:

     "(b) A station having an antenna sampling system constructed according to the specifications given in paragraph (a) of this section, may obtain approval of that system by submitting an informal request to the FCC in Washington, DC."

     "(d) (4) Request for modification of license shall be submitted to the FCC in Washington, DC, within 30 days of the date of sampling system modification or replacement. Such request shall specify the transmitter plate voltage and plate current, common point current, base currents and their ratios, antenna monitor phase and current indications, and all other data obtained pursuant to this paragraph."

Section 73.69 contains the following collection of information:

     "(d) (5) An informal request for modification of license shall be submitted to the Commission in Washington, DC, within 30 days of the date of monitor replacement. Such request shall specify the make, type, and serial number of the replacement monitor, phase and sample current indications, and other data obtained pursuant to this paragraph (d) of this section."

In section 73.158, there are at least two collections of information, one of which provides:

     "(b) When the descriptive routing to reach any of the monitoring points as shown on the station license is no longer correct due to road or building construction or other changes, the licensee must prepare and file with the FCC, in Washington, DC, a request for a corrected station license showing the new routing description."

Section 73.1510 entitled "Experimental authorizations," contains the following collection of information:

     "(b) Experimental authorizations may be requested by filing an informal application with the FCC in Washington, DC, describing the nature and purpose of the experimentation to be conducted, the nature of the experimental signal to be transmitted, and the proposed schedule of hours and duration of the experimentation. Experimental authorizations shall be posted with the station license."

Section 73.1680 (relating to emergency antennas) requires the submission of certain information:

    "(b)... However, an informal request to continue operation with the emergency antenna must be made to the FCC in Washington, DC, within 24 hours after commencement of its use."

Section 73.1690 concerning modifications of transmission systems provides that, in order for modifications to be made, certain defined information must be provided:

     "(b) The following changes may be made only upon specific authority of the FCC. Applications requesting authorization must be filed on FCC Form 301 for commercial stations and on FCC Form 340 for noncommercial educational stations."

Section 73.3538, entitled "Application to make changes in an existing station," provides for information to be submitted regarding the making of changes at radio stations:

     "Where prior authority from the FCC is required to make changes in an existing station the following procedures shall be used to request that authority:

     "(a) An application for a construction permit using the forms specified in §73.3533 must be filed for authority to make the following changes:"
     "(b) An informal application filed in accordance with §73.3511 is to be used to obtain authority to make the following changes in the station authorization:"

All of these regulations do have OMB control numbers assigned to them and the reason why is related to their obvious requirements that information and even forms be submitted to the FCC. It is also interesting to note that §73.3538(b) quoted above acknowledges that §73.3511 is a collection of information.

The regulations applicable here are no different from those quoted above. For example, §73-3512 requires information to be submitted to the FCC:

     "All applications for authorizations required by §73-3511 shall be filed at the FCC in Washington, DC... The number of copies required for each application is set forth in the FCC Form which is to be used in filing such application."

Section §73-3514 provides:

     "(a) Each application shall include all information called for by the particular form on which the application is required to be filed, unless the information called for is inapplicable, in which case this fact shall be indicated."

There can be no dispute that these extremely important regulations do in fact constitute collections of information under the PRA; but the problem arises from the fact that they lack assigned OMB control numbers. The law expressly allows members of the public to "regulate the regulators" and this is done by "ignoring with impunity" those collections of information which fail to display an OMB control number.

For the reason that the FCC has failed to obtain OMB approval for the collections of information codified at 47 C.F.R. , §73.3511, et seq., the public protection provisions of 44 U.S.C., §3512 operate here so as to foreclose any prosecution based upon 17 U.S.C. §§ 301, 308, or 501.

END NOTES:

 *1. 5. Rep. No. 479, 77th Cong., 1st Sess., (1941). The Central Statistical Board later became a part of the Bureau of the Budget, whose name was eventually changed to the Office of Management and Budget ("0MB").

 *2. P.L. 77-831, 56 Stat. 1078 (1942), codified at 44 U.S.C.,  § 3501, et seq. (1981).
 *3 44 U.S.C., § 3509 (1976).
 *4 44 U.S.C., §§ 3506, 3509(2) (1976).
 *5 44 U.S.C., § 510 (1976).

 *6. Circular No. A-40, having application solely to federal agencies, was never published within the Federal Register. These regulations and subsequent amendments were effective until March 31, 1983, when regulations for the PRA were adopted.

 *7   See P.L. 93-153, 87 Stat. 576, § 409 (1973).

 +8. See P.L. 93-556, 88 Stat. 1789 (1974), codified at 44 U.S.C., §
3501 (1982).

 *9  A Report of the Commission on Federal Paperwork, Final Summary Report (Oct. 3, 1977).

 *10. Id., at 606.

 *11. Report of the Comptroller General, "Status of GAO's Responsibilities Under the Federal Reports Act," Nay 28, 1976, at 20.

 *12. Final Report, at 613.

 *13. The Reports Clearance Process, A Report of the Commission on Federal Paperwork 43 (1977).

 *14. Paperwork and Redtape Reduction Act of 1979: Hearing before the Subcomm. on Governmental Affairs, at 12, 96th Cong., 1st Sess. (1979).

 *15. Id., at 131, 132.

 *16. Id., at 165.

 *17. Senate Report No. 96-930, 1980 U.S. Code Cong. and Admin. News 6241, at 6292.

 *18. Presidential Documents, Administration of Jimmy Carter, December 11, 1980, at 2795.

 *19. See preliminary remarks to such regulations, 48 Fed. Reg. 13666 (March 31, 1983).

 *20. See P.L. 104-13, 109 Stat. 163, currently codified at 44 U.S.C., §3501, et seq.

*21. Resolution of this particular problem was an objective of the 1995 PRA.

A. Nature of the Indictment and Facts.

The FCC has sought various indictments and forfeiture actions in the past alleging that certain radio transmissions "from a place in a State to another place in the same State" were made "without a license."
 
The legal theory of the actions and the proof offered consists of assertions that certain individuals engaged in the proscribed radio broadcasts "without a license." Under federal law, total control of the airwaves has been asserted by the United States; see 47 U.S.C., §301. This section prohibits anyone from broadcasting a radio signal in either interstate or intrastate commerce without first obtaining a license to do so. To obtain a license for engaging in the activity of radio broadcasting, one must submit an application to the FCC pursuant to §308(a):

     "The Commission may grant construction permits and station licenses, or modifications or renewals thereof, only upon written application therefor received by it..."

The content of this license application is the subject of the FCC's rule making authority as is apparent from a review of §308(b):

     "All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe..."

Thus the law does not command that any specific information be provided to the FCC and the information to be included on the application form is the subject of regulations which the FCC promulgates.

The applicable regulation relating to the content of such an application form is found at 47 C.F.R., §73-3514, which provides that:

     "(a) Each application shall include all information called for by the particular form on which the application is required to be filed..."

Under this particular regulatory scheme, it becomes clear that the application form itself implements the law. An applicant is required to supply the information mandated by the form, and no form but the "official" form may be submitted, at least pursuant to this regulation. This is the only method by which one may comply with the law and obtain a license.

However, as argued below, this type of regulatory scheme is further subject to the commands of other federal laws such as the Administrative Procedures Act ("APA"), which compels federal agencies such as the FCC to promulgate and publish all rules of general applicability. Here, the application form undoubtedly implements the statutory application and licensing process, which makes this form a "rule" for APA purposes. But since this particular form has never been promulgated and published in the Federal Register, it is void and cannot form the foundation for any civil or criminal prosecution.

B. Statutory Foundation for Federal Register Publication.

Prior to 1935, much of the internal documentation of federal agencies as well as regulations promulgated by these agencies to administer and enforce a variety of federal statutes was not published and generally made available to the American public, notwithstanding the fact that such documentation and regulations purported to impose mandatory obligations. The first act which commanded the publication of agency requirements which affected the public was the Act of July 26, 1935, 49 Stat. 500, ch. 417; this act created the Federal Register and compelled federal agencies to publish therein agency orders and regulations (see §§ 4 and 5 of the act). To insure agency compliance with the act's requirements, §7 provided as follows:

     "No document required under section 5(a) to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof."

An expansion of items required to be published in the Federal Register occurred as a result of the enactment of the Administrative Procedures Act; see Act of June 11, 1946, 60 Stat. 237, ch. 324.  An important definition in this act was the following contained in §2:

     "(c)  Rule and rule making. -- 'Rule' means the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of any agency....

Section 3 of the act commanded that the following types of agency "rules" be published within the Federal Register:

     "(a)  Rules.  Every agency shall separately state and currently publish in the Federal Register (1) descriptions of its central and field organization including delegations by the agency of final authority and the established places at which, and methods whereby, the public may secure information or make submittals or requests; (2) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal or informal procedures available as well as forms and instructions as to the scope and contents of all papers, reports, or examinations; and (3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law. No person shall in any manner be required to resort to organization or procedure not so published."

Further, the act established a certain method whereby agencies were to publish in the Federal Register proposed and final agency rules and were to accord public hearings in reference thereto.  The well known requirements that federal agencies provide adjudication of certain contested matters, subject to judicial review, was established for the first time in this act.  Section 9 of the act further provided:

     "No sanction shall be imposed or substantive rule or order be issued except within jurisdiction delegated to the agency and as authorized by law."

The benefits to the American public derived from the adoption of this act are many. For example, without the requirement to publish statements of the agency's organization, a party would not know as a matter of law what part of an agency was the proper unit or division responsible for the resolution of a particular problem, what part of an agency had enforcement authority, or what part of an agency was designated to receive  "submittals" required of the public. While it is obvious that social security benefits applications are not submitted to the Securities and Exchange Commission, it might be entirely improper to submit such an application to the office secretary for Social Security's data processing unit.  Without the requirement to publish agency "delegation orders," the American public and its members are deprived, and possibly detrimentally so, of the knowledge of which officers and agents within a vast federal agency are authorized to act on the agency's behalf. The submission of a tort claim to either the proper officer designated to receive the same or to the office janitor is of critical importance if the claim is one year and 363 days old. Finally, without notice to the American public via publication of the substantive requirements of a federal agency having delegated authority to administer and enforce federal laws, nobody, excluding possibly agency personnel, judges and lawyers, would have any knowledge of what was required to avoid the imposition of civil or criminal sanctions.

As amended, the above noted statutes continue their existence today, codified within 5 U.S.C, §§ 551 through 558.  These sections within Title 5 require that federal agencies must publish in the Federal Register a variety of information which affects the rights, duties and obligations of members of the public. In 5 U.S.C., §551, a "rule" is defined:

     "(4) 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency ....

Section 552 describes in particular detail various items which must be published by federal agencies in the Federal Register:

     "(1)  Each agency shall separately state and currently publish in the Federal Register for the guidance of the public--

    (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
     (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
     (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and content of all papers, reports, or examinations;
     (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
    (E) each amendment, revision or repeal of the foregoing.

     "Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register."

Further, §552a directs that all federal agencies which maintain "Systems of records" containing data and other information regarding individual citizens or residents must publish descriptions of those systems in the Federal Register; see §552a(e)(4). When any federal agency engages in the collection of information from an individual, §552a(e) (3) commands that the individual concerned be informed of the authority for the collection of the information, the purpose for which the information is intended to be used, the routine uses made of the information, and the effect of not providing such information. Finally, §558(b) prohibits an agency from issuing any substantive rule or order, or imposing any sanctions, outside the jurisdiction delegated to the agency.

As seen from above, §552 permits "incorporation by reference", a process governed by 1 C.F.R., part 51.  However, matters which should be published in the Federal Register but which are deemed included therein "by reference" must be approved by the Director of the Federal Register and "proper language" so noting the "incorporation by reference" must appear within agency rules which are published in the Federal Register.  Items which cannot be published either in the Federal Register or by incorporation by reference are described at 1 C.F.R., §5.4. (*1)

Thus, current statutes impose stringent requirements upon federal agencies to publish in the Federal Register descriptions of the agency's organizational structure as well as those substantive rules of general applicability duly promulgated by the agency. Any matter required by law to be published, but which is not, cannot be the basis for the imposition of any sanction or penalty against anyone. As shown below, the FCC application form, which is a rule, is void because of its non-promulgation and non-publication as a rule.

C. Legal Mandates to Supply Information.

It is an established rule of law that one may not be prosecuted or proceeded against by the government for failure to supply information unless the applicable statute requires that the information be supplied. For example, in Viereck v. United States, 316 U.S. 236, 242, 63 S.Ct. 561, 563-64 (1943), a foreign agent who omitted certain information from his foreign agent's registration statement was prosecuted because the government believed he should have disclosed some information which he did not. In reversing that conviction, the U.S. Supreme Court held:

     "Unless the statute, fairly read, demands the disclosure of the information which petitioner failed to give, he cannot be subjected to the statutory penalties."

See also United States v. Irwin, 654 F.2d 671, 679 (10th Cir. 1981) ("And, of course, there can be no criminal conviction for the failure to disclose when no duty to disclose is demonstrated"); United States v. Anzalone, 766 F.2d 676, 683 (1st Cir. 1985); United States v. Larson, 796 F.2d 244, 246 (8th Cir. 1986); and United States v. Dorey, 711 F.2d 125, 128 (9th Cir. 1983). Therefor, for the government to proceed against one either civilly or criminally for a failure to supply information which a statute does not mandate to be supplied violates due process.

This rule operates in a wide variety of fields of law, particularly in those which require parties subject to the law to file some return or disclosure statement. For example, when the first Federal Corrupt Practices Act was adopted in the 1930s for the purpose of regulating election campaign finances, challenges were made regarding its application; see Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287 (1934). Challenges have been made to the federal laws requiring the registration of lobbyists and the filing of disclosure statements by them; see United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808 (1954). The current Federal Elections Campaign Act requires the submission of very specific information by means of forms which are required to be filed with the Federal Elections Commission; see 2 U.S.C., §§431 through 455. But, some of those statutory demands for information have been found unconstitutional; see Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612 (1976). If it had been impossible to know what information was required by law to be supplied pursuant to these various federal laws, the constitutionality of those requests for information could never have been legally challenged.

This rule also manifests itself via decisions of the state courts. For example, California was one of the first states to adopt an Ethics in Government law which required elected public officials to disclose their financial condition. Shortly after the first California law was enacted, its very specific demands for very broad information was tested and the whole act was found unconstitutional; see City of Carmel-By-The-Sea v. Young, 2 Cal.3d 259, 466 P.2d 225 (1970). After a second and more refined law was adopted, it too was challenged but this time the act survived; see County of Nevada v. MacMillan, 11 Cal.3d 662, 522 P.2d 1345, 1352-53 (1974). Some of the contentions made in MacMillan concerned what specific information was required to be supplied, that information being described as "sources of income," and the Court explained what that information precisely was:

     "That amendment defined the term 'source of income' as 'the business entity or activity of the official which earned or produced the income.' Thus as we read it, the act, as amended, would not require disclosure of the names of the official's customers, clients or patients. Instead, the official must only disclose the specified information regarding his own business entity or activity which produced the income. For example, a landlord would disclose the address and receipts from his apartment building, not the names of his tenants and the rents paid by each."

Other challenges have been made to these disclosure laws of California and whether those laws constitute a legal mandate to supply certain specific information. In Hays v. Wood, 25 Cal. 3d 772, 603 P.2d 19 (1979), an "equal protection" objection was made to the different disclosure requirements which ostensibly applied to different types of officials and other, private activities they pursued. Finding no rational basis for the distinct classes established by the law, certain provisions of the act were found unconstitutional. In Community Cause v. Boatwright, 124 Cal.App. 3d 888, 177 Cal.Rptr. 657, 666 (1981), an action was brought against a public official for his failure to provide greater details regarding certain of his assets than were required by law. In finding that this action should be dismissed, that court stated that "(there is no requirement for more specificity, and the facts alleged do not constitute a violation" of the act.

Other state courts have upheld these disclosure laws despite various constitutional challenges which were made; see Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409 (1972); Ill. State Employees Assoc. v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974); Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911 (1974); and Chamberlin v. Missouri Elections Comm., 540 S.W.2d 876 (Mo. 1976). While not finding the whole law unconstitutional in Falcon v. Alaska Public Offices Comm., 570 P.2d 469 (Alaska 1977), that court declared that a particular statutory disclosure requirement constituted an invasion of privacy and required the agency to formulate better disclosure regulations.

Disclosure of financial information is required by federal "blue sky" laws and federal courts do not require that more information be supplied when complying with those laws than is required either by law or regulations; see Azurite Corp. Ltd. v. Amster & Co., 844 F.Supp. 929, 934 (S.D.N.Y. 1994); and Teltronics Services, Inc. v. Anaconda-Ericsson, Inc., 587 F.Supp. 724, 732 (E.D.N.Y. 1984). All of the courts which rendered the above decisions implicitly recognized the general principle that a governmental demand that an individual supply to it certain specific information must have its foundation in the law, either a statute or its counterpart, a regulation. Needless to say, if review of other fields of law were undertaken here, this same rule would manifest itself.

Since a demand imposed upon an individual requiring that personal information to be supplied to a government agency must have a legal foundation, the natural question arises regarding the consequence of a demand for information which lacks such a basis. Again, this problem has been addressed by the federal courts and they have determined that due process is violated in such circumstances. For example, in United States v. Anzalone, 766 F.2d 676, 681, 682 (1st Cir. 1985), a defendant was prosecuted for violating the federal currency transactions reporting laws by structuring his cash transactions, and this case naturally drew into question the issue of what was the source for the defendant's duty to disclose the transaction itself by filing a report. In reversing Anzalone's conviction, the court held:

     '"We can find nothing on the face of either the Reporting Act, or its regulations, or in their legislative history, to support the proposition that a 'structured' transaction by a customer constitutes an illegal evasion of any reporting duty of that customer.

     "According to the report, although the July 1980 revisions of the regulations resolved some of the deficiencies, 'the propriety of multiple transactions has not been addressed in the regulations'.

     "We are required to conclude that the Reporting Act and its regulations, as they presently read, imposed no duty on appellant to inform the Bank of the 'structured' nature of the transactions here in question. The application of criminal sanctions to appellant for engaging in the activities heretofore described violates the fair warning requirements of the due process clause of the fifth amendment. The charges under Count V should have been dismissed." (Emphasis added]

A similar rationale was given to reverse a defendant's conviction in United States v. Denemark, 779 F.2d 1559 (11th Cir. 1986).

In United States v. Varbel, 760 F.2d 758, 762 (9th Cir. 1966), the same issue arose. Here, some defendants had broken up a large sum of cash and had converted it into cashier's checks by a series of transactions under $10,000. When prosecuted, they contended that there were no regulations (*2) implemented which required the disclosure of the information. In reversing those convictions, that court stated:

     "The present ambiguity regarding coverage of the Reporting Act and its regulations has indeed been created by the government itself. 31 U.S.C. § 5313(a) extends its coverage to financial institutions and any other participant in the transaction. The Secretary could have required participants other than financial institutions to file a report; however, 31 C.F.R. §103.22 limits the reporting to financial institutions only.

     "We conclude that the Reporting Act and its regulations did not impose a duty on appellants to inform the banks involved of the nature of their currency transaction. We believe that the application of criminal sanctions against appellants here would violate due process." [Emphasis added]

See also United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986), and United States v. Larson, 796 F.2d 244 (8th Cir. 1986).

In summary, there is a clear principle of law that whenever government seeks the provision of specific information by members of the public, that command must manifest itself via either a statute or regulation which identifies the precise information that must be provided. Here in this case, §308 is the statute which arguably requires one desiring to engage in radio broadcasting to obtain a license through an application process; it must therefore be tested against the legal principle discussed above.

D. Statutes Implemented by Regulations.

It is common for various congressional acts to broadly vest rule making authority in some designated federal official, and a problem in this respect may be that the grant of such authority can be so broad that it is unconstitutional as an unlawful delegation of legislative power. Some of the most notorious Congressional acts delegating broad rule making authority were enacted during the Great Depression via the National Industrial Recovery Act, and the resulting litigation brought the same into issue. In Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241 (1935), at issue were "hot oil" regulations promulgated via §10(a) of the National Industrial Recovery Act which authorized the President "to prescribe such rules and regulations as may be necessary to carry out the purposes' of the Act'. 293 U.S., at 407. Finding that the President's rule making authority under this act amounted to an unconstitutional delegation of legislative power to the President, the regulations at issue were found to be "without constitutional authority;" 293 U.S., at 433. The National Industrial Recovery Act not only authorized the President to promulgate rules and regulations, it also authorized him to adopt entire "codes of fair competition;" in both Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837 (1935), and Carter V. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855 (1936), such "codes" were found unconstitutional. A reading of the National Industrial Recovery Act reveals that it was primarily enforceable only through such "rules, regulations and codes."

In Yakus V. United States, 321 U.S. 414, 64 S.Ct. 660 (1944), and M. Kraus & Bros. v. United States, 327 U.S. 614, 66 S.Ct. 705 (1946), the price control laws at issue in these cases were dependent upon the promulgation of regulations.  In Douglas v. Commissioner of Internal Revenue, 322 U.S. 275, 64 S.Ct. 988 (1944), a statute dealing with income tax deductions contained the words "such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary."  Douglas was decided solely by interpretation and construction of the regulation at issue. In Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 503, 68 S.Ct. 695 (1948), at issue before the Court was the construction of a statute and regulation. Here, the Court found it essential to construe both the statute and regulation to decide the case:

     "That the Commissioner was particularly intended by Congress to have broad rule-making power under the regulation was manifested by the first words in the new ... section which only permitted taxpayers to take advantage of it 'under regulations prescribed by the Commissioner with the approval of the Secretary.'"

See also Fratt v. Robinson, 203 F.2d 627 (9th Cir., 1953), a case involving a statute containing the language, "such rules and regulations as the Commissioner may prescribe."

In United States v. Mersky, 361 U.S. 431, 437-38, 80 S.Ct. 459 (1960), the Court had before it a statute which contained the words, "The Secretary of the Treasury may by regulations ..." Concerning this language, the Court stated:

     "Here the statute is not complete by itself since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command .... Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force.  In effect, therefore, the construction of one necessarily involves the construction of the other."

See also United States v. Wayte, 549 F.Supp. 1376, 1385 (C.D.Cal. 1982) ("the defendant's argument that the court should view the applicable statute, regulations and proclamation as one statutory scheme is well founded")

These decisions demonstrate the manner by which rules "implement" a statute. Whenever a legislative scheme delegates rule making authority to an executive officer, there is usually a legislative purpose in having him adopt regulations to implement the law. If the full commands of the law are not known from just simple examination of the statute itself and if the requirements of the law can only be enforced by construing together both the applicable statute and corresponding rule, then it is clear that the rule implements the statute.

Simple review of §308 discloses that, as the Secretary of the Treasury may propose regulations regarding the federal CTR laws, the FCC is authorized to prescribe rules regarding the contents of an application for a radio station license. Further, it must be noted the Commission cannot have unbridled discretion regarding the type of information it may demand; (*3) for this reason, the remainder of §308(b) limits this rule making authority of the Commission to "the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station;... and such other information as it may require." Clearly, the statute itself requires rules for its implementation and to implement this regulatory scheme, 17 C.F.R., §73.3514 has been promulgated, and like the statute, it as well requires further rules.

That further rule is the actual application form itself, and thus the form implements the complete legislative scheme; see Ranger v. F.C.C., 294 F.2d 240, 242 (D.C.Cir. 1961). For this reason and as explained below, the form must be promulgated as a rule as required by the APA.

1. Rules within instructions.

Within an agency, "instructions" may be promulgated and distributed to agency officers and employees informing them as to the manner and method of implementing and enforcing any particular law. If by chance these "instructions" likewise meet the definition of a "rule" as defined by '551, and if the same be "substantive" as prescribed by '552, they must be published in the Federal Register. (*4) Further, instructions given to members of the public by an agency likewise qualify as rules. Several cases have found these "instructions" given by an agency void for non-publication.

It appears that one of the first cases to deal with this issue was United States v. Morelock, 121 F.Supp. 932 (D.Md. 1954). This case concerned an act to regulate the production of wheat which of necessity required agriculture officials to measure the amount of acreage devoted to wheat production. To accomplish this purpose, agency "instructions" given to agency employees outlined measurement procedures and the same required some affirmative acts on the part of farmers. When suit was instituted to force some dissenting farmers to permit measurement of their wheat crops, the farmers replied that their supposed duties under the act as set forth within the unpublished "instructions" were void. The court agreed with this argument, holding:

     "But there is no provision in the Act or the Regulations imposing any duty on farm operators in connection with the visits of the reporters or other representatives of the county committee. The only obligation on farm operators in that connection is set out in Paragraph II D of Instruction No. 1006.... This instruction was not published in the Federal Register or otherwise brought to the attention of defendants before suit. It was, therefore, not binding on them," Id., at 944.

     "As we have seen, those Instructions were not published in the Federal Register, and therefore cannot impose any affirmative duty on defendants," Id., at 945.

During the height of the Viet Nam war, certain draft regulations outlined a procedure whereby conscientious objectors would be inducted for civilian service. But, the operation of this procedure concerning conscientious objectors was substantially altered by the issuance of a "Letter to All State Directors" and a temporary "instruction," both of which were not published in the Federal Register notwithstanding the fact that they had an adverse impact upon the objectors. In Gardiner v. Tarr, 341 F.Supp. 422, 434 (D.D.C. 1972), upon challenge, these documents were found void as unpublished substantive rules:

     "While the pre-publication and publication sections of the Act and the implementing Executive Order do not further define what are considered to be 'Rules' and 'Regulations', it is inconceivable that policies intended to have the force and effect of the policies purporting to effect the Plaintiffs in this proceeding, may be considered anything other than 'Rules and Regulations', notwithstanding the label attached by Defendant, and may be applied to Plaintiffs or any affected registrant without having been published in a manner in accordance with the Act. Whatever Defendant has entitled these unpublished but written policies, they ''purport[s] to be an authoritative declaration of policy issued for the guidance of the (Selective Service] System's line officers....' Therefore, the letters and Temporary Instruction in question are as much 'regulations' as any administrative agency's standardized, enforced, and broad policy directives."

The same issue was raised in Piercy v. Tarr, 343 F.Supp. 1120 (N.D.Cal. 1972), which resulted in a similar holding. See also Washington Fed. Sav. & Loan Assoc. V. Federal Home Loan Bank Board, 526 F.Supp. 343, 383-84 (N.D.Ohio 1981), concerning instructions as to the manner and method of closing down a bank.

The validity of an unpublished instruction affecting the food stamp program was at issue in Aiken v. Obledo, 442 F.Supp. 628 (E.D.Cal. 1977). While the food stamp program is federally funded and state administered, federal regulations establish the standards for eligibility. But in this case, an indigent and eligible family was denied assistance because of an unpublished "FNS (FS) Instruction 7321, section 2313," which limited eligibility by a "collateral contact requirement and a 6 month rule." These limitations upon food stamp entitlement contained in an "instruction"' to employees administering the program were held void for lack of publication:

     "Interpretative rules '... consist of administrative construction of a statutory provision on a question of law reviewable in the courts'....  They do not have the force of law....

     "The 'collateral contact' and 'six month' rules set forth in the instruction in question have the force of law....

     "Procedural rules are those that relate to the method of operation of the agency, while substantive rules are those which establish standards of conduct or entitlement..." Id., at 649.

     "Since it is undisputed that the 'collateral contact' rule was not so published, it was adopted in violation of notice and comment provisions of the APA and must be declared void and set aside," Id., at 650.

See also Lewis-Mota v. Secretary of Labor, 169 F.2d 479 (2nd Cir. 1972).

A similar problem regarding the food stamp program was raised in Anderson V. Butz, 550 F.2d 459 (9th Cir. 1977), which considered a different aspect of the unpublished "Food and Nutrition Service (FNS), Food Stamp (FS) Instruction 732-1," before the court in Aiken, supra. Here the unpublished instructions commanded that HUD rent subsidies should be considered as "income"(*5} for food stamp purposes. Finding a substantial impact upon recipients of food stamps as a consequence of the "rule" contained in the unpublished instructions, the Court declared this rule void and unenforceable. See also Air Line Pilots Assoc. Intern. v. Dep't. of Transportation, 446 F.2d 236 (5th Cir. 1971); Phillips Petroleum Co. v. Federal Power Commission, 475 F.2d 842 (10th Cir. 1973); Alaniz v. Office of Personnel Management, 728 F.2d 1460 (Fed.Cir. 1984); Fraga v. Smith, 607 F.Supp. 517, 523 (D.Or. 1985); United States v. Article of Drug, 634 F.Supp. 435, 457 (N.D.Ill. 1985) ("matching letters" which established a policy of the agency were void); United States v. Shearson Lehman Bros., Inc., 650 F. Supp. 490, 496 (E.D.Pa. 1986); United States v. Riky, 669 F. Supp. 196, 201 (N.D.Ill. 1987); NI Industries, Inc. v. United States, 841 F.2d 1104 (Fed.Cir. 1988); and National Treasury Employees Union v. Reagan, 685 F.Supp. 1346 (E.D. La. 1988).

Thus, the above decisional authority clearly shows that "instructions" given by an agency which command the performance of an act by a member of the public are subject to the publication requirement. Any instruction pamphlet or booklet which accompanies the FCC application form may very likely be a rule within the scope of the APA.

2. Forms that are rules.

As seen from the above cases, agency "rules," especially those which are not published, can appear in a variety of documents such as manuals, letters, instructions and other things. Additionally, forms used by agencies can fall within the scope of a "substantive rule," especially those designed to implement a law, thus necessitating publication. Several cases have considered the issue of the consequence of non-publication of such an agency form.

In United States v. Two Hundred Thousand Dollars ($200,000) in United States Currency, 590 F.Supp. 866 (S.D.Fla. 1984), at issue was the validity of Customs Form 4790 (Currency Transaction Report)  used in the enforcement of the Currency and Foreign Transactions Reporting Act. In this case, a man named Palzer had suffered the seizure of $200,000 by Customs agents when he entered the country and failed to submit Form 4790. In the resulting forfeiture proceedings, Palzer intervened and asserted the invalidity of the form because it constituted an agency "rule" which had not been published in the Federal Register. In considering Palzer's claim, the court found that regulations required the filing of a form, although the substance and contents of the information required to be supplied was not addressed in the regulations:

     "However, the regulations are incomplete in this case without the forms, because the regulations do not set forth the information a traveler will be required to furnish on the forms, specifically Form 4790," Id., at 869.

The Court found that the form itself constituted an agency "rule":

     "Interpretative rules are 'statements as to what the administrative officer thinks the statute or regulation means', whereas substantive rules, such as Form 4790, are issued by an agency pursuant to statutory authority which have the force and effect of law....  It is also apparent that Form 4790 is not a 'general statement of policy' as would be exempted from the publication requirement under 5 U.S.C. section 553(b).  That Form 4790 is a 'legislative' rule rather than an interpretive one or a general statement of policy is apparent from the fact that the form was clearly intended to implement the pertinent statute ... and the regulation...; section 551(4) of the APA distinguishes agency statements designed to implement a law from those designed to interpret it," Id., at 870-71.

Finding that the form in question was a "rule" that had not been published in the Federal Register, the Court declared:

     "Given the scope of the information which Customs Form 4790 requires a traveler to furnish, as well as the Form's role as an implementing mechanism for the reporting regulations, Form 4790 is a substantive and implementing rule which falls within none of the acceptable exemptions under the APA and should have been published in the Federal Register," Id., at 871-72.

Another case addressing the issue of whether an agency form is likewise a "rule" requiring publication is United States v. Reinis, 794 F.2d 506 (gth Cir. 1986). Here, Reinis was charged with money laundering and consequent failure to file the C.T.R. Form 4789. In a short opinion and based upon the authority of the opinion noted immediately above, it was held that this form was a substantive rule which was invalid for failure of the agency to publish it in the Federal Register. See also United States v. Cogswell, 637 F. Supp. 295, 298 (N.D.Cal. 1985); United States v. Gimbel, 930 F.2d 621, 626 (7th Cir. 1987); United States v. Risk, 672 F. Supp. 346, 358 (S.D.Ind. 1987), affirmed at 843 F.2d 1059 (7th Cir. 1988); and United States v. Hayes, 827 F.2d 469, 471, 472 (9th Cir. 1997).

At issue in Appalachian Power Company v. Train, 566 F.2d 451, 455 (4th Cir. 1977), was the failure of the EPA to publish a very lengthy document named "Development Document" in the Federal Register. This document (described in Virginia Electric and Power Company v. Costle, 566 F.2d 446, 448 (4th Cir. 1977)) was 263 pages long and purported to establish standards for effluent emissions.  Because the document itself constituted a substantive agency regulation which was not published, it was held invalid:

     "[T]he Development Document is not a validly issued part of the regulations, because it has not been published in the Federal Register, nor have the procedural requisites for incorporation by reference been complied with. With this position we agree, and hold that 40 C.F.R., section 402.12 is not enforceable for want of proper publication.

     "Any agency regulation that so directly affects pre-existing legal rights or obligations ..., indeed that is 'of such a nature that knowledge of it is needed to keep the outside interests informed of the agency's requirements in respect to any subject within its competence,' is within the publication requirement....  As the substance of a regulation imposing specific obligations upon outside interests in mandatory terms..., the information in the Development Document is required to be published in the Federal Register in its entirety, or, in the alternative, to be both reasonably available and incorporated by reference with the approval of the Director of the Federal Register."

See also PPG Industries, Inc. v. Costle, 659 F.2d 1239 (D.C.Cir. 1981). But compare United States v. Bowers, 920 F.2d 220 (4th Cir. 1990).

The lesson of the above cases is directly applicable here. Section 308 requires parties to submit to the FCC an application for a license to operate a radio station, a legal requirement which does not stand alone by itself and which must be construed in conjunction with 47 C.F.R., §73.3514.  But like the statute, this regulation also fails to describe the information which must be submitted in order to obtain this license and obviously the contents of a license application can only be known through the official application form itself. Since this form is clearly one which implements a statutory scheme, it is plainly a rule for APA purposes. But because this rule has never been published in the Federal Register, it cannot be the basis for any civil or criminal prosecution; see Hotch v. United States, 212 F.2d 280, 283 (9th Cir. 1954).

E. Decisional authority in other states.

The above legal proposition is not some minor technicality apparent in federal law. Many states also have administrative procedures acts which similarly require state agencies to publish within some administrative publication all rules of general applicability. These statutory requirements have been litigated and a variety of courts have concluded that instructions to both agency personnel in some instances and instructions to the public promulgated by the agency must be published. Further, several cases have held that agency forms which have not been published were void rules.

Several state cases have dealt with this problem arising from agency instructions. For example, in Burke v. Children's Services Division, 26 Or. App. 145, 552 P.2d 592 (1976), an instruction regarding the termination of welfare benefits was held void as an unpublished rule. In Florida State University v. Dann, 400 So.2d 1304, 1305 (Fla.App. 1981), a salary document setting forth the manner for granting merit salaries to university employees was held to be a void rule. Regarding the revocation of a state issued certificate based on an unpublished letter, the court in McCarthy v. Dep't. of Ins. & Treasurer, 479 So.2d 135, 137 (Fla.App. 1985), held that "[t]his letter was more than incipient agency policy. Since it had the effect of requiring compliance and was not adopted by the proper rulemaking process, it was invalid."

In Ohio Dental Hygienists Assoc. v. Ohio State Dental Board, 21 Ohio St.3d 21, 487 N.E.2d 301 (1986), an unpublished advisory opinion letter was declared to be a void rule, as was a "program bulletin" in Detroit Base Coalition for Human Rights of Handicapped v. Director, Dep't. of Social Services, 431 Mich. 172, 428 N.W.2d 335, 342-43 (1988). An administrative order was held void in Woodland Private Study Group v. State Dep't. of Environmental Protection, 209 N.J.Super. 261, 507 A.2d 300, 302 (1966), as were a personnel memo regarding employee sick leave in Petition of Daly, 523 A.2d 52 (N.H. 1966); an agency directive in Johnson v. N.D. Workers Comp. Bureau, 128 N.W.2d 514 (N.D. 1989); and a fee schedule in West Virginia Chiropractic Soc., Inc. v. Merritt, 359 S.E.2d 432 (W.Va. 1987).

A benefits policy was determined unenforceable in K-Mart Corp. v. State Industrial Ins. System, 101 Nev. 12, 693 P.2d 562 (1985), and an aquifer policy suffered the same fate in Heimbach v. Williams, 517 N.Y.S. 2d 393 (Sup. 1997). A prison rule was declared void in Watson v. Oregon State Penitentiary, 90 Or.App. 85, 750 P.2d 1189 (1988), as were workmen compensation rules and a position paper in Hardiman v. Dep't. of Public Welfare, 550 A.2d 590, 596 (Pa.Cmwlth. 1988), and Ohio Nurses Assoc., Inc. V. State Board of Nursing, 44 Ohio St.3d 73, 510 N.E.2d 1354 (1989). See also Brunson Const. & Environ. Services, Inc. v. City of Prichard, 664 So.2d 885, 893 (Ala. 1995); and Ex Parte Traylor Nursing Home, Inc., 543 P.2d 1179 (Ala. 1998).

In Northwest Airlines, Inc. v. State Tax Appeal Board, 720 P.2d 676, 678 (Mont. 1986), this airline challenged a tax apportionment formula devised by state tax authorities to compute the amount of taxes owed; finding this formula to be an unpublished rule, it was held void. In Grier v. Kizer, 268 Cal.Rptr. 244 (Cal.App. 2 Dist. 1990), the court found that a statistical auditing technique affected the rights of the challenging party; because this technique was not published as a rule, it was held void. The court interestingly described this unpublished rule as "an underground regulation."

Several state cases have also dealt with the issue of whether a given form meets the requirements of an APA rule. In Dep't. of Business Regulation v. Martin County Liquors, Inc., 574 So.2d 170 (Fla.App. 1991), a liquor license form was held to be a void rule due to the lack of promulgation and publication within the administrative code. In Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878, 888 (Fla.App. 1988), the court found that an "application form constitutes an unpublished rule and is therefore invalid." Certain forms relating to home schooling compliance were found void in Clonlara, Inc. v. State Board of Education, 188 Mich.App. 332, 469 N.W.2d 66 (1991). Another manner of viewing such unpublished forms was demonstrated in Matter of Estate of Horman, 152 Ariz. 358, 732 P.2d 588 (1986); an unpublished form does not comply with the APA, and it is therefore not a rule. Obviously, this principle of law which manifests itself in a line of federal decisional authority is one recognized by many state courts.

The FCC has a checkered history of compliance and occasional noncompliance with the requirements of the APA, and this often creates serious problems; see Salzer v. F.C.C., 778 F.2d 669, 874 (D.C.Cir. 1985). This lack of compliance with the dictates of the APA is clearly posing problems for those in the "micro-broadcasting" industry. If the FCC wants to enforce the full weight of the law upon those whom they allege engage in "unlicensed" broadcasting, perhaps it should first comply with the law itself, especially the APA. For the reasons noted above, the FCC application form to obtain a radio broadcasting license is clearly a "rule" under the APA, and it is void because it has never been promulgated and published.

END NOTES:
      (*1)  This latter prohibition first appeared in the August 27~ 1941, edition of the Federal Register, at page 4398, et seq.

      (*2) The federal currency transactions reporting laws have been found to be entirely dependent upon the promulgation of regulations for their enforcement; see California Bankers Assn. v. Shultz, 416 U.s. 21, 26, 94 S.Ct. 1491 (1974); United States v. Reinis, 794 F.2d 506, 508 (9th Cir. 1986) (a person cannot be prosecuted for violating the currency reporting law unless he violates an implementing regulation); and United States v. Murphy, 809 F.2d 1427, 1430 (9th Cir. 1987) (the reporting act is not self-executing and can impose no reporting duties until implementing regulations have been promulgated).

      (*3) Such broad discretion cannot be vested in the hands of an administrative agency; see Gutknecht v. United States, 396 U.S. 295, 306, 90 S.Ct. 506 (1970) ("The power under the regulations to declare a registrant 'delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions").

      (*4) See Herron v. Heckler, 576 F.Supp. 218, 230 (N.D.Cal. 1983) ("The claims manual provisions clearly fall within the definition of 'rule' quoted above: they are an agency statement; they are applicable prospectively to a class of SSI beneficiaries generally and to the named plaintiff particularly; and by defendants' own admission in their -memoranda, they are designed to implement, interpret and/or prescribe law. Moreover, the claims manual provisions are 'rules' as the term generally has been construed by the courts: they declare policies generally binding on the affected public; they provide specific standards to regulate future actions of the affected public; and they make a substantive impact on the rights and duties of persons subject to their limitations").

  (*5) See Dean v. Butz, 428 F.Supp. 477, 480 (D.Hawaii 1977), where an unpublished policy statement regarding what was income was held void because not promulgated as a rule.

Submitted by:
 

David Moore
1108 W. Main, Suite 101
Norman, OK 73069
(Comments Re: RM-9208)