美国联邦通信委员会(zh中英对照)

THE FEDERAL COMMUNICATIONS COMMISSION*

美国联邦通信委员会

R. H. COASE 科斯

University of Virginia 弗吉尼亚大学

I.THE DEVELOPMENT OF GOVERNMENT REGULATION

政府法规的发展

IN THE United States no one may operate a broadcasting station unless he first obtains a license from the Federal Communications Commission. These licenses are not issued automatically but are granted or withheld at the discretion of the Commission, which is thus in a position to choose those who shall operate radio and television stations. How did the Commission come to acquire this power?

在美国除非他先获得了联邦通信委员会发的许可证，否则没人可以经营广播电台。这些许可证不是随意发放的而是要由委员会来决定许可或者扣留，因此委员会就具有了选择谁可以经营广播和电视台的权力。那么，委员会是怎么得到这项权力的呢？

About the turn of the century, radio began to be used commercially, mainly for ship-to-shore and ship-to-ship communication.1 This led to various proposals for legislation. Some of these were concerned with the promotion of safety at sea, requiring the installation of radio equipment on ships, the employment of skilled operators, And the like. Others, and it is these in which we are interested, were designed to bring about government control of the operations of the industry as a whole.

大约在是在本世纪之交，无线电开始被用于商业，主要是船岸和船船之间的通讯。这导致了各种各样的立法提案。其中一些考虑促进海上安全，要求在床上安装无线电设备，雇佣有技术的操作员等等。另一些呢，是我们感兴趣的，整体来说就是为了使政府能控制这一产业的经营。

The reason behind such proposals can be seen from a letter dated March 30, 1910, from the Department of the Navy to the Senate Committee on Commerce, which described, "clearly and succinctly" according to the Committee, the purpose of the bill to regulate radio communication which was then under discussion. The Department of the Navy explained that each radio station

我们可以从一封1910年3月30日海军部门写给参议院商业委员会的信中看到这些提案背后的理由，信中参照了委员会的要求清晰简洁地描述了这项当时正在讨论中的规范无限电通信议案的目的。海军部解释道，

considers itself independent and claims the right to send forth its electric waves through the ether at any time that it may desire, with the result that there exists in many places a state of chaos. Public business is hindered to the great embarrassment of the Navy Department. Calls of distress from vessels in peril on the sea go unheeded or are drowned out in the etheric bedlam produced by numerous stations all trying to

communicate at once. Mischievous and irresponsible operators seem to take great delight in impersonating other stations and in sending out false calls. It is not putting the case too strongly to state that the situation is intolerable, and is continually growing worse.

每一个无线电站都视自己为独立的并且主张在任何需要的时候发送它们横贯以太的电波，结果这导致了许多地方的混乱状态。公共的商业被阻碍到让海军部门十分窘迫的地步。来自海上处于危险境地的船只的悲惨呼救无法被注意到或者埋没在由无数电台同时通讯所产生的以太的喧嚣中。恶意的和不负责任的操作者似乎在冒充别的电台和发送错误呼救中感到愉悦。如此严重的情况并没有得到遏制，还在进一步恶化中。

The letter went on to point out that the Department of the Navy, in cooperation with other Government departments, has for years sought the enactment of legislation that would bring some sort of order out of the turbulent condition of radio communication, and while it would favor the passage of a law placing all wireless stations under the control of the Government, at the same time recognizes that such a law passed at the present time might not be acceptable to the people of this country.2

这封信继续指出，海军部门与其他政府部门协作多年，寻求通过这项可以给混乱无线电通讯状况带来一些秩序的立法，并且它将支持通过一项使所有无线电台处于政府控制之下的法律，同时它也承认在现阶段通过这一法律可能让这个国家的民众觉得难以接受。

The bill to which this letter referred was passed by the Senate but was not acted upon by the House of Representatives. Toward the end of 1911 the same bill was reintroduced in the Senate. A subcommittee concluded that it "bestowed too great powers upon the departments of Government and gave too great privileges to military and naval stations, while it did not accurately define the limitations and conditions under which commercial enterprises could be conducted."8 In consequence, a substitute bill was introduced, and this secured the approval both of the Senate and of the House of Representatives and became law on August 13, 1912. The Act provided that anyone operating a radio station must have a license issued by the Secretary of Commerce. +

这项针对信中所指内容的法案在参议院得到通过但是在众议院没有起效。到了1991年末同样的法案在参议院再次被提出。一个附属委员会得出结论，“应给予政府部门最大的权力和给予军事和海军的电台最大的特权，而不用精确定义商事企业可以执行的限度和条件。”结果，一条替代法案被提出了，并且稳当地得到了参议院和众议院的批准并且在1912年8月12日成为了法律。这一法案（Act）假设了任何人想要经营无线电台必须要有商务部长颁布的许可证。

+This license would include details of the ownership and location of the station, the wave length or wave lengths authorized for use, the hours for which the station was licensed for work, etc. Regulations, which could be waived by the Secretary of

Commerce, required the station to designate a normal wave length (which had to be less than 600 or more than 1,600 meters), but the station could use other wave lengths, provided that they were outside the limits already indicated. Amateurs were not to use a wave length exceeding 200 meters. V arious other technical requirements were included in the Act. The main difference between the bill introduced in 1910 and the Act as passed was that specific regulations were set out in the Act, whereas originally power had been given to the Secretary of Commerce to make regulations and to prevent interference to "signals relating to vessels in distress or of naval and military stations by private and commercial stations"; power to make regulations was also given to the President.4

这一许可证将包含所有者和电台位置、波长或者授予实用的波长、电台准许运作的时数等详细信息。这些可能会被商务部长废除的规章，要求电台指定一种标准波长（必须小于600或大于1600米），但是如若他们在明示限制的范围外，电台可以使用其他波长。业余爱好者不许实用超过200米的波长。各种各样的其他技术要求包含在这一法案里。1910年的提案和已通过的这一法案间主要的不同是法案里具体规定的设置，尽管最初的权力给了商务部长制定规章和预防“私人和商业电台对涉及处于困境中的船只或者海军和军事电台的信号”干涉；制定规章的权力同样授予了总统。

It was not long before attempts were made to change the law. The proposal that the Secretary of Commerce should have power to make regulations was revived. A bill was even introduced to create a Post Office monopoly of electrical communications. In 1917 and 1918, bills were introduced which would have given control of the radio industry to the Department of the Navy. Indeed, the 1918 bill was described, quite accurately, by Josephus Daniels, the Secretary of the Navy, as one which "would give the Navy Department the ownership, the exclusive ownership, of all wireless communication for commercial purposes." Mr. Daniels explained that radio was "the only method of communication which must be dominated by one power to prevent interference .... +

不久，人们就开始尝试改变这一法律。商务部长应当有权制定规章的建议再次提出。甚至一项为了创建邮局垄断电子通讯的议案被提出。在1917年和1918年，本来将由海军部门管制无线电产业的法案被提出。实际上，在1918法案中相当精准地描述道，Josephus Daniels ，“作为一个要把所有商用无线通信所有权（一种排他性所有权）给海军部”的海军部长，Daniels先生解释道无线电是“唯一的为了防止（信号）干扰必须被一种权力支配的通信方式……

+The question of interference does not come in at all in the matter of cables or telegraphs but only in wireless." Some members of the House Committee to which Mr. Daniels was giving evidence asked whether it would not be sufficient to regulate the hours of operation and the wave lengths used by radio stations, while leaving them in private hands. But Mr. Daniels was not to be moved from his position:

干扰的问题在电缆或电报业务里根本不存在而只出现在无线电业务里。”一些收到Daniels先生证据的众议院议员问道，把无线电留在私人手里，仅规范经营时间和用于无线电电台的波长会不会还不够。但是Daniels先生并不打算离开他的

职位：

My judgment is that in this particular method of communication the government ought to have a monopoly, just like it has with the mails-and even more so because other people could carry the mails on trains without interference, but they cannot use the air without interference.

我的评价是，在这一特别的通信方式上政府应该拥有像它在邮件上所拥有的甚至更多的垄断权。因为人们可以在火车上不受干扰的携带邮件，但是他们不能不受干扰地使用无线电。

Later Mr. Daniels explained: "There are only two methods of operating the wireless: either by the government or for it to license one corporation-there is no other safe or possible method of operating the wireless." That led one of the Committee to ask: "That is because of the interference in the ether, is it?" Mr. Daniels replied: "There is a certain amount of ether, and you cannot divide it up among the people as they choose to use it; one hand must control it." Later, Commander Hooper, one of Mr. Daniels' advisers, told the Committee:

后来Daniels先生解释道：“只有两种方法使用无线电：一种是由政府经营，另一种是批准公司法人经营，再就没有其他安全或合适的经营无线电的方法了。”这使得一位委员会委员要问：“这是因为以太中的干扰，是吗？”Daniels先生回答道：“有一定数量以太，并且当人们要使用它时，您不可能在人民中划分它；必须得出手控制它。”后来，负责人Hooper，Daniels先生的一位顾问，告诉委员会：

. . . radio, by virtue of the interferences, is a natural monopoly ; either the government must exercise that monopoly by owning the stations, or it must place the ownership of these stations in the hands of one concern and let the government keep out of it.5

无线电，介于干扰的存在，是一种天然的垄断；政府要么通过拥有电台执行垄断，要么将这些电台的所有者置于一种考量下的控制并且让政府置身度外。

The Navy in 1918 was in a much stronger position to press its claim than in the period before the 1912 Act. It had controlled the radio industry during the war and, as a result of building stations and the acquisition by purchase of certain private stations, owned 111 of the 127 existing American commercial shore stations. Nevertheless, the House Committee does not appear to have been convinced by the Navy Department's argument, and no further action was taken on this bill. Nor was this proposal e ver to be raised again. The emergence of the broadcasting industry was to make it impossible in the future to think of the radio industry solely in terms of point-to-point communication and as a matter largely of concern to the Department of the Navy.

海军在1918年发布了它的主张，比1912法案（Act）时期处于更加强势的地位。在战争期间通过建立电台和收购个别私人电台，结海军控制了无线电产业，拥有了美国当时现有的127个商业岸基电台中的111个。然而，众议院并没有显得确信海军部门的论证，也没有在这一议案采取进一步的行动。这一提案从此没有被再次提起。广播产业的出现使得在未来人们不再考虑无线电产业仅就点对点通讯方面的问题，也不再将之作为一项海军部门所涉及的事项。

The broadcasting industry came into being in the early 1920's. Some broadcasting stations were operating in 1920 and 1921, but a big increase in the number of stations occurred in 1922. On March 1, 1922, there were 60 broad-casting stations in the United States. By November 1, the number was 564.6Mr. Herbert Hoover, as Secretary of Commerce, was responsible for the administration of the 1912 Act, and he faced the task of preventing the signals of these new stations from interfering with each other and with those of existing stations. In February, 1922, Mr. Hoover invited representatives of various government departments and of the radio ind ustry to the first Radio Conference. +

广播产业出现于1920年代。一些广播电台在1920年和1921年已经在经营了，但是大量的增长出现在1922年。在1922年3月1日，美国有60家广播电台。到了11月1日，这个数量是564。Herbert Hoover先生，作为商务部长，负责执行1912法案，他要面对的任务是预防这些新电台信号相互之间以及和现存电台间的干扰。在1922年2月，Hoover先生邀请各个政府部门和无线电产业的代表参加第一届无线电研讨会。

+The Conference recommended that the powers of the Secretary of Commerce to control the establishment of radio stations should be strengthened and proposed an allocation of wave bands for the various classes of service. Other conferences followed in 1923, 1924, and 1925.7 Bills were introduced in Congress embodying the recommendations of these conferences, but none passed into law. The Secretary of Commerce attempted to carry out their recommendations by inserting detailed conditions into the licenses. However, his power to regulate radio stations in this way was destroyed by court decisions interpreting the 1912 Act.

这次大会建议商务部长控制无线电台建立的职权应当被加强并且提议对不同级别服务的波段配给。其他的会议依次在1923年，1924年和1925年举行。议案在国会提出，包含这些会议的建议，但是没有一条通过成为法律。商务部长尝试通过在许可证上加入详细的条件贯彻他们的建议。然而，他用这种形式规范无线电台的权力被法庭解释1912法案的裁决破坏了。

In 1921, Mr. Hoover declined to renew the license of a telegraph company, the Intercity Radio Company, on the ground that its use of any available wave length would interfere with the signals of other stations. The company took legal action, and in February, 1923, a court decision held that the Secretary of Commerce had no discretion to refuse a license.8 This meant, of course, that the Secretary had no control over the number of stations that could be established. However, the wording of the court decision seemed to imply that the Secretary had power to choose the wave length which a licensee could use.+

1921年，Hoover先生拒绝更新一家电报公司——城际无线电公司（Intercity Radio Company）的许可证，鉴于它滥用波长干扰了其他电台的信号。这家公司采取了法律行动，在1923年2月，一份法庭判决认为商务部长没有拒绝批准的自行决定权。这当然意味着，部长无法控制住电台设立的数量。然而，这份法院判决的措辞似乎暗示了部长没有权力挑选许可证上使用的波长。

+A later decision was to deny him even this power. In 1925 the Zenith Radio Corporation was assigned the wave length of 332.4 meters, with hours of operation limited from 10:00 to 12:00 P.M. on Thursday and then only when this period was not wanted by the General Electric Company's Denver station. These terms indicate the highly restrictive conditions which Mr. Hoover felt himself obliged to impose at this time. Not unnaturally, the Zenith Company was not happy with what was proposed and, in fact, broadcast on wave lengths and at times not allowed by the license. Criminal proceedings were then taken against the Zenith Company for violation of the 1912 Act.+

之后的一份判决甚至驳斥了他这一权力。在1925年，真立时无线电公司（Zenith Radio Corporation）被安排使用332.4米的波长，经营时间限制为星期二从下午10点到12点，而且只有当通用电气公司的丹佛电台不想用这个时段的时候。这些条款显示了极为苛刻的限制性条件，Hoover先生觉得他自己是被迫去强制这样一个时间。很自然地，真立时公司（Zenith Company）对推荐的事项、广播波长和有时不被许可证允许的情况，事实上不太愉快。因违反了1912法案真立时公司被提起刑事诉讼。

+ But in a decision rendered in April, 1926, it was held that the Act did not give the Secretary of Commerce power to make regulations and that he was required to issue a license subject only to the regulations in the Act itself.9 As we have seen, these merely required that the wave length used should be less than 600 or more than 1,600 meters. The decision in the Zenith case appeared in certain respects to be in conflict with that in the Intercity Radio Company case, and the Secretary of Commerce asked the Attorney General for an opinion. His opinion upheld the decision in the Zenith case.10 +

但是在1926年4月的一份呈递的判决里，认为1912法案没有给予商务部长权力去制定规章，部长必须服从1912法案本身发放许可证。正如我们所看到的，1912法案仅仅规定了波长应当小于600或大于1600米。真立时（Zenith）案的判决表现出了对于在冲突中的城际无线电公司案的一定敬意，商务部长询问了美国司法部长的意见。他的意见是支持真立时(Zenith)案的判决。

+This meant that the Secretary of Commerce was compelled to issue licenses to anyone who applied, and the licensees were then free to decide on the power of their station, its hours of operation, and the wave length they would use (outside the limits mentioned in the Act). The period which followed has often been described as one of "chaos in broadcasting." More than two hundred stations were established in the next nine months. These stations used whatever power or wave length they wished, while many of the existing stations ceased to observe the conditions which the Secretary of Commerce had inserted in their licenses

这意味着商务部长被迫像所有申请者发放许可证，并且许可证不再约束电台的功率，电台的经营时间，和他们使用的波长（1912法案中提到的限制范围之外的）。接下来的时期经常被描述为“广播的混乱时代”之一。有超过200个电台在接下来的9个月时间里建立。这些电台随心所欲地使用任意功率或波长，而许多现存的电台停止遵守商务部长已经在他们许可证上加入的条件。

For a number of years Congress had been studying various proposals for regulating radio communication. The Zenith decision added very considerably to the pressure for new legislation. In July, 1926, as a stop-gap measure designed to prevent licensees establishing property rights in frequencies, the two houses of Congress passed a joint resolution providing that no license should be granted for more than ninety days for a broadcasting station or for more than two years for any other type of station. Furthermore, no one was to be granted a license unless he executed "a waiver of any right or of any claim to any right, as against the United States, to any wave length or to the use of the ether in radio transmission ..." +

多年来国会一直在研究各种各样用于规范无线电通信的提议。真立时（The Zenith）法案极大地增加了制定新法的压力。在1926年7月，作为一项用于预防许可证持有人频繁建立产权的应急措施，国会两院通过了一项联合方案，规定无线电台许可证不会授予超过90多天，其他类型的电台不超过两年。此外，个人不被授予许可证除非他履行“放弃作为与美国相对的，对波长或者在无线电广播中应用的以太的权利或者对权利的任何主张”

+This echoed an earlier Senate resolution (passed in 1925), in which the ether and the use thereof had been declared to be "the inalienable possession of the people of the United States ...." When Congress reconvened in December, 1926, the House and Senate quickly agreed on a comprehensive measure for the regulation of the radio industry, which became law in February, 1927.

这与一份早期的（1925年通过的）国会方案相似，在这份方案中声明以太和无线电应用中的以太是“美国人民不可分割的财产……”当国会在1926年12月重新召集的时候，众议院和参议院已经迅速同意了一项规范无线电产业的全面措施，这一措施在1927年2月变成了法律。

This Act brought into existence the Federal Radio Commission. The Commission, among other things, was required to classify radio stations, prescribe the nature of the service, assign wave lengths, determine the power and location of the transmitters, regulate the kind of apparatus used, and make regulations to prevent interference. It was provided that those wanting licenses to operate radio stations had to make a written application which was to include such facts as the Commission may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; the ownership and location of the proposed station and of the stations,if any, with which it is proposed to communicate; the frequencies or wave lengths and the power desired to be used; the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used, and such other information as it may require.

这一法案（Act）使得联邦无线电委员会成立。除了别的之外，委员会被要求给无线电台分级，规定服务的性质，配置波长，决定发射台的功率和位置，规范二手仪器的种类，以及制定预防干扰的法规。法案进一步规定这些有欠缺的无线电台经营许可证必须做出一份申请，该申请应包括委员会规定的事实诸如公民权、特征、财政、技术和其他申请经营电台的资格；被提议的电台的以及与之通讯的电台（如果有的话）的所有人身份和位置；希望使用的频率或波长以及功率；一

天的时数或者其他推荐的经营电台的时段；电台的使用目的和诸如此类其他需要的信息。

The Commission was authorized to issue a license if the "public interest, necessity or convenience would be served" by so doing. Once the license was granted, it could not be transferred to anyone else without the approval of the Commission. And, incorporating the sense of the 1926 joint resolution, licensees were required to sign a waiver of any claim to the use of a wave length or the ether.

委员会经授权颁发许可证给这些按照上面的规定经营的“服务于公众利益、需求或便利”的申请者。一旦授予了许可证，不可以将之转让给其他任何没有获得委员会批准的（电台所有人）。另外，为了融入1926年联合方案的意思，要求许可证持有者签订放弃主张波长或以太的使用权。

The Commission was thus provided with massive powers to regulate the radio industry. But it was prohibited from censoring programs: Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals trans mitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communication.

委员会被赋予了管制无线电产业的大量权力。但是它被禁止审查节目：这一法案没有能被理解或领会为赋予许可证发放权中包含审查无线电通讯或无线电台信号传输的权力，而且许可证发放权也没有被配置或公布出可以干预无线电言论自由的管理和限制权力。

Nonetheless, the Act did impose some restrictions on a station's programming . Obscene, indecent, or profane language was prohibited. A station was not allowed to rebroadcast programs without the permission of the originating station. The names of people paying for or furnishing programs had to be announced. Finally, it was provided that, if a licensee permitted a legally qualified candidate for public office to broadcast, equal opportunities had to be offered to all other candidates.

虽然如此，这个法案强加了一些电台节目上的限制。禁止淫秽，猥亵，或者亵渎神灵的语言。电台不能未经允许重播首发电台的节目。付费的或者装备的节目必须宣布名字。最后，法案进一步规定，如果许可证持有者允许一位合法的有资格的公职候选人广播，那么其他候选人也必须给予同等的机会。

The regulatory powers of the Federal Radio Commission did not extend to radio stations operated by the federal government, except when the signals transmitted did not relate to government business. These government stations were subject to the authority of the President. In fact, the allocation of frequencies for government use was carried out under the aus pices of the Inter-department Radio Advisory Committee, which had originally been formed in 1922 but which continued in existence after the establishment of the Federal Radio Commission.

除了当信号传递不能与政府业务相协调的时候，联邦无线电委员会的管制权力没有扩展到联邦政府的无线电电站。政府的电站服从总统的权力。事实上，分配给政府使用的频率在部门内部无线电资讯委员会（Inter-department Radio Advisory

Committee）的支持下得以贯彻。这一部门最初在1922年形成但是在联邦无线电委员会建立后继续存在。

In 1934 the powers exercised by the Federal Radio Commission were transferred t o the Federal Communications Commission, which was also made responsible for the regulation of the telephone and telegraph industries. This change in the administrative machinery made little difference to the relations between the regulatory authority and the radio industry. Indeed, the sections of the 1934 Act dealing with the radio industry very largely reproduced the 1927 Act.11 Amendments have been made to the 1934 Act from time to time, but these have related mainly to procedural matters, and the main structure has been unaffected.12 In all essentials, the system as it exists today is that established in 1927.

在1934年联邦无线电委员会执行的权力被转交给了联邦通信委员会，这一委员会同时负责电话和电报产业的管制。这一行政机构的改变在管制权力和无线电产业间的关系上没有太大不同。事实上，1934法案的部分章节极大地再现了1927法案中对无线电产业的处理。1934法案时不时增加一些修正案，但主要是和程序相关的事情，主要的结构没有影响。今天存在的整个法案体系所有的精华还是1927年建立的。

II.THE CLASH WITH THE DOCTRINE OF FREEDOM OF THE PRESS

与新闻自由原则的冲突

The situation in the American broadcasting industry is not essentially different in character from that which would be found if a commission appointed by the federal government had the task of selecting those who were to be allowed to publish news papers and periodicals in each city, town, and village of the United States. A proposal to do this would, of course, be rejected out of hand as inconsistent with the doctrine of freedom of the press. But the broadcasting industry is a source of news and opinion of comparable impor tance with news papers or books and, in fact, nowadays is commonly included with the press, so far as the doctrine of freedom of the press is concerned. The Commission on Freedom of the Press, under the chairmanship of Mr. Robert M. Hutchins, used the term "press" to include "all means of communicating to the public news and opinions, emotions and beliefs, whether by news papers, magazines, or books, by radio broadcasts, by television, or by films."13 +

美国广播产业的情形与联邦政府所委任的委员会是否有选择在美国的每座城市、城镇和乡村里哪家（出版社）允许发布报纸和期刊的任务在特征上并非有着根本的不同。如果一项提案要管制这方面，介于与新闻自由原则相悖，会马上被否决。但是广播产业是一种新闻资源并且它发布的观点与报纸和书是差不多重要的，另外在事实上，就新闻自由原则而言，现在广播产业被包括在新闻出版业里。新闻自由委员会，在Robert M. Hutchins先生任内，将“新闻出版”一词囊括了“所有与公众新闻、观点、情感、信仰沟通的手段，无论是通过报纸、杂志、或书、无线电广播、电视、电影。”

+Professor Zechariah Chafee had little doubt that the broadcasting industry came within the protection of the First Amendment.14 A dictum in the Supreme Court expressed a similar view: "We have no doubt that moving pictures, like news papers and radio, are included in the press whose freedom is guaranteed by the First Amendment."15 Y et, as Mr. Louis G. Caldwell has

pointed out, a broadcasting station can be put out of existence and its owner deprived of his investment and means of livelihood, for the oral dissemination of language which, if printed in a news paper, is protected by the First Amendment to the Constitution against exactly the same sort of repression.16

Zechariah Chafee教授确信广播产业受到了第一修正案的保护。一份最高法院的声明表达了相似的观点：“我们认为影片同报纸和广播一样包括在新闻出版里面，它的自由由第一修正案保证。”然而，（现在仍）如Louis G. Caldwell先生所指出的，介于语言是口头散播的，不像印在报纸上的内容受到宪法第一修正案的专门对抗类似镇压的保护，广播站可能会灭绝并且所有者的投资和谋生手段会被剥夺。

In the discussions preceding the formation of the Federal Radio Commission, Mr. Hoover distinguished between two problems: the prevention of interference and the choice of those who would operate the stations:

在联邦无线电委员会形成前的讨论中，Hoover先生看清了两个不能的问题：预防干扰和选择电台的经营者：

... the ideal situation, as I view it, would be traffic regulation by Federal Government to the extent of the allotment of wave lengths and control of power and the policing of interference, leaving to each community a large voice in determining who are to occupy the wave lengths assigned to that community.17

在我看来，理想的情形是像联邦政府制定的交通法规那样，在一定范围内分配波长，控制功率，监管干扰，把分配给每个群体的波长由他们自己在决定谁占用波长的问题上提出主要意见。

But, as we have seen, both of these tasks were given to the Federal Radio Commission. Some interpreted the fact that the Commission was denied the power of censorship as meaning that it would not concern itself with programing but would simply act as "the traffic policeman of the ether." But the Com-mission maintained--and in this it has been sustained by the courts-that, to decide whether the "public interest, convenience or necessity" would be served by granting or renewing a license, it had to take into account proposed or past programing. One commentator remarked, that by 1949, the "Commission had travelled far from its original role of airwaves traffic policeman. Control over radio had become more than regulation based on technological necessity; it had become regulation of conduct, and the basis was but emerging."18

但是，正如我们所看到的，这两项任务都交给了联邦无线电委员会。有些人解释道，委员会被否决了审查权，意味着他们不能干涉节目但可以简单地像个“以太的交通警察”那样行动。但是委员会坚持根据是否服务了“公众的利益、便利或必要性”来决定授予或更新许可证的权力（这方面已经受到了法院的支持），这需要考虑提案中的或过去的节目。一位评论员在1949年评论道，“委员会已经远离了它起初电波交警的角色。对无线电的控制已经变成了一种基于技术必要性的管制；这已经变成了控制的法规，其基础曾是那样但现在暴露出了其他端倪”

The Commission is instructed to grant or renew a license if this would serve the "public interest, convenience or necessity." This phrase, taken from public utility legislation, lacks any definite

meaning. It "means about as little as any phrase that the drafters of the Act could have used and still comply with the constitutional requirement that there be some standard to guide the administrative wisd om of the licensing authority.”19Furthermore, the many inconsistencies in Commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation. The character of the program proposals of an applicant for a frequency or channel is, of course, one of the factors taken into account by the Commission, and any applicant with a good lawyer will find that his proposals include live programs with local performers and programs in which public issues are discussed (these being program types which appear to be favored by the Commission). And when the time comes for renewal of the license, which at the present time is every three years, the past programing of the station is reviewed.20

委员会受到指示，授予或更新许可证给那些服务于“公众利益、便利或必须”的申请者。这一采自公共事业立法的措辞，缺乏明确的意义。这“意味着法案起草者本应该使用尽量少的措辞并服从宪法要求，这些要求中有一些标准用来引导授予许可证的行政智慧。”此外，许多委员会决议上的矛盾使得在立法过程中想要让措辞获得确定的意义变得不太可能。节目申请频率或者频道的提议的特征理所当然地被委员会视作需要考虑的因素，而且有位好律师的申请都包括有当地表演者的现场直播节目和讨论公共话题的节目（这些成为了委员会最喜欢的节目类型）。当到了更新许可证的时候（目前这个时间是每隔三年），过去的电台节目就要接收复审。

A good illustration of the difference between the position of the owner of a broadcasting station and the publisher of a newspaper is provided by the case of Mr. Baker, who operated a radio station in Iowa and was denied a renewal of his license in 1931 because he broadcast bitter personal attacks on persons and institutions he did not like. The Commission said:

Baker先生是一位在爱荷华经营过无线电电台，并且在1931年因为他广播了对某些他不喜欢的人和机构尖锐的人生攻击，在更新他的许可证时遭到了否决。他对广播电台所有者和一份报纸出版者地位间的不同有一种很好的说法。委员会说：

This Commission holds no brief for the Medical Associations and other parties whom Mr. Baker does not like. Their alleged sins may be at times of public importance, to be called to the attention of the public over the air in the right way. But this record discloses that Mr. Baker does not do so in any high-minded way. It shows that he continually and erratically over the air rides a personal hobby, his cancer cure ideas and his likes and dislikes of certain persons and things. Surely his infliction of all this on the listeners is not the proper use of a broadcasting license. Many of his utterances are vulgar, if not indeed indecent. Assuredly they are not uplifting or entertaining.

委员会不支持医学协会和其他Baker先生不喜欢的当事人。他们被断言的过错或许有时具有公众重要性，通过无线电的适当方法受到公众注意力的召唤。但这一记载说明了Baker先生做这些并没有用高尚的方法。这显示了他持续地不规律地通过电台展现个人喜好，他的癌症治疗想法和他对某些人和事的喜欢或厌恶。无疑，他所有这些施加于听众的事物不是一种对广播许可证的合理使用。如果还算不上萎缩的话，他的许多言论也非常的三俗。确实，他们没有让人觉得开心或有趣。

Though we may not censor, it is our duty to see that broadcasting licenses do not afford mere personal organs, and also to see that a standard of refinement fitting our day and generation is maintained.21

虽然我们不是审查员，但是不让广播许可证提供给仅是作为个人的宣传工具和让适用于我们现在和同时代人的经过改良的标准得以维持是我们的义务。

It is hardly surprising that this decision has been described as "in spirit pure censorship."22

这样的决定被形容为精神纯洁的审查几乎没有什么可惊奇的。

The Commission's attempts to influence programing have met with little opposition, except on two occasions, when the broadcasting industry made vigorous protests. The first arose out of the so-called Mayflower decision of 1940. A Boston station had broadcast editorials urging the election of certain candidates for public office and expressing views on controversial questions. The Commission criticized the station for doing this and renewed its license only after receiving assurances that the station would no longer broadcast editorials. In 1948 the Commission re-examined the question and issued a report which, while not explicitly repudiating the Mayflower doctrine, nevertheless expressed approval of editorializing subject to the criterion of "overall fairness." The Commission agreed that its ruling involved an abridgment of free dom but that this was necessary:

委员会对支配广播节目的尝试还没有遇到反对，除了偶尔的两次，那两次广播产业做了有力的反抗。第一次是由所谓的五月花1940决议引起的。一家波士顿的电台发布了一份力劝选举特定候选人并表达了对争议问题的观点的广播社论。在1948年，委员会再次检查了问题并发布了一份报告，虽然没有明确违背五月花声明，不过发表支持性的社论要服从“总体公正”的标准。委员会承认它的管制牵涉到对自由的剥夺但是这是必须的：

Any regulation of radio, es pecially a system of limited licensees, is in a real sense an abridgment of the inherent freedom of persons to express themselves by means of radio communications. It is howerever, a necessary and constitutional abridgment in order to prevent chaotic interference from destroying the great potential of this medium for public enlightment[sic] and entertainment.

任何无线电规章，尤其是有限持照者体系，都是在某种真正意义上对人们固有的通过无线电通讯表达自我的自由权利的一种剥夺。可是，这是一种必要的合宪的剥夺，它是为了预防这一用于启迪和娱乐公众的极具潜力的媒体被混乱的干扰破坏。

The Commission then went on:

委员会继续道：

The most significant meaning of freedom of the radio is the right of the American people to listen to this great medium of communications free from any governmental dictation as to what they can or cannot hear and free alike from similar restraints by private licensees.

无线电自由最重大的意义是美国公民收听这一伟大的通讯媒体的权力，这一权力使得美国公民不受任何政府口授的关于他们可以或不可以听的内容的束缚，并且同样地摆脱了类似私人持证者的限制。

It is not clear to me what the Commission meant by this. It could hardly have been the intention of the Commission to pay a tribute to the "invisible hand."23

对我来说通过这份决议委员会的意思还不太清楚。称颂“看不见的手”恐怕不是委员会的意图。

The second controversy arose out of the publication of the so-called Blue Book by the Federal Communications Commission in 1946, entitled Public Service Res ponsibility of Broadcast Licensees. In this report the Commission indicated that it was going to pay closer attention to

questions of programming and that those stations which carried sustaining programs, loc al live programs, and programs devoted to the discussion of public issues and which avoided "advertising excesses" would be more likely to have their licenses renewed. In the case of sustaining programs, it was suggested that they should be used with a vie w to (a) maintaining an overall program balance, (b) providing time for programs in-appropriate for s ponsorship, (c)providing time for programs serving particular minority tastes and interests, (d)providing time for non-profit organizations-religious, civic, agricultural, labor, educational, etc., and (e) providing time for experiment and for unfettered artistic self-expression.24

第二次争议是由于1946年联邦通信委员会发布的所谓的蓝皮书引起的，那本蓝皮书书名叫做“广播持证者的公共服务责任”。在这份报告里，委员会指示道它将进一步关注节目问题和这些广播非营利性的独立节目、地方性直播节目、公共话题讨论的电台，以及这些为了避免“广告过度”而更新许可证的电台。就非营利性广播节目而言，委员会就某种观点来看建议他们用于（a）保持总体节目平衡，（b）提供时间给不适合赞助商的节目，（c）提供时间给迎合特定少数人品味和兴趣的节目,（d）提供时间给非营利性机构——宗教、市民群体、农业、劳动、教育等，以及（e）提供时间给实验和逍遥的艺术的个性展现。

It was argued (by Justin Miller, of the National Association of Broadcasters, among others) that the publication of the Blue Book was unconstitutional, as being contrary to the First Amendment, but on this the courts have not given an opinion.

全国广播公司协会的Justin Miller在众人中争辩道，蓝皮书的发布时违宪的，因为违背了第一宪法修正案，但是在这一问题上法院还没有给出意见。

The examination by the Commission of the past activities of applicants has at times posed a threat to other freedoms. One example is furnished by the proceedings in the Daily News case. The publishers of the New York Daily News applied for permission to construct an FM station. The American Jewish Congress intervened, arguing that the application should be denied because the Daily News had evidenced bias against minority groups, particularly Jews and Negroes, and has published irresponsible and defamatory news items and editorials concerning such minorities ... the News had thus demonstrated… that it is unqualified to be the licensee of a radio station because it could not be relied upon to operate its station with fairness to all groups and points of view in the community.

委员会在过去申请活动中的检查有时威胁到了别的自由权利。在每日新闻中的诉讼提供了一个例子。纽约时报的出版商申请准许修建一座FM电台。美国犹太人代表大会对此进行了干涉，争辩道这项申请应当被否决，因为有证据表明每日新闻对少数族裔群体有偏见，特别是对犹太人和黑人，每日新闻发表过不负责的和诽谤的新闻材料和涉及这些少数族裔的评论……每日新闻因此被论证为……不具有持有无线电台许可证的资格因为它不被信赖能在经营电台时公正地对待所有的群体和他们的观点

The admissibility of such evidence was questioned, but the Commission held that it could be received, although pronouncing it inconclusive in this case. The application of the owners of the Daily News was finally rejected on other grounds, although it has been suggested that the evidence of the American Jewish Congress in fact played a part in bringing about the decision. What seems clear is that a news paper which has an editorial policy approved of by the Commission is more likely to obtain a radio or television license than one that does not. The

threat to freedom of the press in its strictest sense is evident.25 +

这些证据的证明力是受质疑的，但是委员会认为这可以接受，虽然在这个案子里宣判这是非决定性的。尽管美国犹太人代表大会的证据在事实上对导致这一裁决起到了一部分的作用，但每日新闻的所有者的申请最终因为其他论据被拒绝了。似乎很明显，一家报纸如果有评论受到委员会政策上的支持，那么比起那些没有的，它就更有可能获得无线电或电视的许可证。对于严格意义上的新闻自由的威胁是明显的。

+Another case involved the political activities of an owner of a radio station, Mr. Edward Lamb. In earlier hearings, Mr. Lamb had denied having Communist associations. When the license of his station came up for renewal in 1954, the Commission charged that his previous statements were false. According to Professor Ralph S. Brown, the Broadcast Bureau of the Commission "produced in support of its charge as sorry a collection of unreliable and mendacious witnesses as have appeared in any recent political case." Finally, after lengthy proceedings, the license was renewed, but the Commission in its decision rejected the view that it "had no right to inquire into past associations, activities, and beliefs (26)

另一件案子涉及一个无线电电台的所有者——Edward Lamb先生的政治活动。在较早时候听说，Lamb先生否认了与共产党的关系。当在1954年他的电台许可证要更新的时候，委员会控告道他先前的声明是假的。根据Ralph S. Brown教授的说法，委员会广播分局“制作了一份支持它指控的虚假的、伪造的证词集子，这同样遗憾地出现在了一些近来的政治案件中。”最终，在漫长的诉讼后，许可证得到了更新，但是委员会在这一裁决中拒绝了它“没有权利调查过往的关系，活动和信仰……”的观点。

If we ask why it is that the Commission's policies have met with so little opposition, the ans wer, without any doubt, is that the Commission has been extremely hesitant about imposing its views on the broadcasting industry. Sometimes licenses have been renewed on condition that the programs to which the Commission objected were not broadcast in the future. Some operators have not had their licenses renewed largely or wholly because of objec tions to the programs transmitted. But the number of such cases is not large, and the programs to which objection was taken were devoted to such topics as fortune-telling, horse-racing results, or medical advice or involved attacks on public officials, medical associations, or religious organizations.27

如果我们问为什么委员会的政策受到这么少的反对，答案，毫无疑问是因为委员会已经对强加自己的观点在广播产业感到极为犹豫。有时候只有在被委员会反对的节目以后不再广播的条件下，许可证才可以更新。一些经营者还没有大量或完全更新他们的许可证因为对节目传播的反对。但是这类案子的数量不是很大，并且这些被反对的节目其主题是致力于诸如算命、跑马结果、或者医疗咨询、或者牵涉到对政府官员、医学会、或者宗教组织的攻击。

It is difficult for someone outside the broadcasting industry to assess the extent to which programing has been affected by the views and actions of the Commission. On the face of it, it would seem improbable that the Commission's cautious approach would intimidate many station operators. However, the complete compliance of the industry to the Mayflower decision may be cited as evidence of the power of the Commission. Furthermore, the Commission has many favors to give, and few people with any substantial interests in the broadcasting industry would want to flout too flagrantly the wishes of the Commission.

对于一个远离广播产业的人来说，去评估节目被委员会的观点和行动所影响的程度是很困难的。这在表面上看来，委员会谨慎的方式似乎是不可能威吓到许多电台经营者。然而，这一

产业完全地屈服于五月花决议可以被引用为委员会权力的证据。此外，委员会有给许多的关照，并且在广播产业有实质利益的人不想公然藐视委员会的诉求。

III.THE RA TIONALE OF THE P RESENT SY STEM

当前体系的基本原理

Professor Chafee has pointed out that the newer media of communication have been subjected to a stricter control than the old:

Chafee教授指出新的通讯媒介比老的受到更严格的管制。

Newspapers, books, pamphlets, and large meetings were for many centuries the only means of public discussion, so that the need for their protection has long been generally realized. On the other hand, when additional methods for spreading facts and ideas were introduced or greatly improved by modern inventions, writers and judges had not got into the habit of being solicitous about guarding their freedom. And so we have tolerated censorship of the mails, the importation of foreign books, the stage, the motion picture, and the radio.28

报纸，书，传单，和大型会议在数个世纪以来是公众讨论的唯一途径，以至于保护的需求被普遍意识到。另一方面，当新的传播事实和想法的方式被引入或者得到新发明的极大改进时，作家和法官还没有形成关心保卫他们自由的习惯。并且我们容忍了对邮件、进口外文书籍、舞台剧、电影和无线电的审查。

It is no doubt true that the difference between the position occupied by the press and the broadcasting industry is in part due to the fact that the printing press was invented in the fifteenth and broadcasting in the twentieth century. But this is by no means the whole story. Many of those who have acquiesced in this abridgment of freedom of the press in broadcasting have done so reluctantly, the situation being accepted as a necessary, if unfortunate, consequence of the peculiar technology of the industry.

新闻出版所占据的地位和广播产业间的区别，毫无疑问地，部分是由于印刷出版物在15世纪发明而广播是在20世纪发明的这一事实。但是这绝不是所有的原因。尽管很不幸，许多对广播的新闻自由的剥夺表示默许的人已经勉强接受了，这一情况是个别的技术产业的必然性结果的观点。

Mr. Justice Frankfurter, in delivering the opinion of the Supreme Court in one of the leading cases on radio law, gave an account of the rationale of the present system:

Justice Frankfurter先生，在给最高法院首例无线电案的看法中，给出了一个对当前体系基本原理的说明。

The plight into which radio fell prior to 1927 was attributable to certain basic facts about radio as a means of communication-its facilities are limited; they are not available to all who may wish to use them; the radio s pectrum simply is not large enough to accommodate everybody. There is a fixed natural limitation upon the number of stations that can operate without interfering with one another. Regulation of radio was therefore as vital to its development as traffic control was to the development of the automobile. In enacting the Radio Act of 1927, the first comprehensive scheme of control over radio communication, Congress acted upon the knowledge that if the potentialities of radio were not to be wasted, regulation was essential.

在1927年之前无线电所陷入的困境归因于一特定的基本事实，无线电作为一种通讯工具，它的设施是有限的；他们不能被所有想要用它的人得到；无线电的频谱没有大到可以容纳所有人。对大量可以不干扰别家而经营的电台来说有一固定的天然限制。无线电规章因此对它的发展和交通管制对汽车的发展一样必不可少。在制定1927无线电法案，即第一个控制无线电通讯的全

面计划时，国会奉行这样的逻辑，如果无线电的潜力没有被浪费，那么规章就是必要的。

T o those who argued that we should "regard the Commission as a kind of traffic officer, policing the wave lengths to prevent stations from interfering with each other," Mr. Justice Frankfurter ans wered:

对于这些争辩道我们应该“视委员会为一种交通部门，监管波长预防电台相互干扰”的人，Justice Frankfurter先生回答道：

But the Act does not restrict the Commission merely to supervision of traffic. It puts upon the Commission the burden of determining the composition of that traffic. The facilities of radio are not large enough to accommodate all who wish to use them. Methods must be devised for choosing from among the many who apply. And since Congress itself could not do this, it committed the task to the Commission.

但是法案并不仅仅是限制委员会监管交通。它还使之承担决定交通组成。无线电设施无法容纳所有想要使用它的人。必须设计出在申请者中挑选的方法。介于国会本身不能做这些，便把任务委托给了委员会。

The Commission was, however, not left at large in performing this duty. The touch-stone provided by Congress was the "public interest, convenience or necessity."

当然不是留有委员会随便来执行这项职责的。国会提供的试金石是“公共的利益，便利或必须性。”

. . . The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest.... The Commission's licensing function cannot be discharged, therefore, merely by finding that there are no technological objections to the granting of a license. If the criterion of "public interest" were limited to such matters, how could the Commission choose between two applicants for the same facilities, each of whom is financially and technically qualified to operate a station? Since the very inception of federal regulation of radio, comparative considerations as to the services to be rendered have governed the application of the standard of "public interest, convenience or necessity."29

……无线电设施是有限的并因此而珍贵；在不对公共利益造成损害的同时，不能任由它们被浪费使用……因此，委员会不能仅仅是发现没有技术上对授予许可证的异议就执行许可证发放的功能。如果“公共利益”的标准被限制在这些事情上，委员会如何在两份对同样的设施的申请上，每家都具有财政和技术上经营电台的资格的情况下做出选择呢？自联邦无线电规则的特有开端起，相较之下对所呈献的服务的考虑已支配了“公共利益，便利或必要性”的申请标准。

The events which preceded government regulation have been described very vividly by Professor Charles A. Siepmann:

在政府规章出来前的事件被Charles A. Siepmann教授非常生动地进行了描述：

The chaos that developed as more and more enthusiastic pioneers entered the field of radio was indescribable. Amateurs crossed signals with professional broadcasters. Many of the professionals broadcast on the same wave length and either came to a gentleman's agreement to divide the hours of broadcasting or blithely set about cutting one another's throats by

broadcasting simultaneously. Listeners thus experienced the annoyance of trying to hear one program against the raucous background of another. Ship-to-shore communication in Morse code added its pulsing dots and dashes to the silly symphony of sound.

混乱的发展如同越来越热情的先锋们进入无线电领域那样难以描述。业余者和专业广播公司信号交叉。许多专家用同一波长广播并且没有一方客气地同意划分广播时段或者漫不经心地通过同时广播来打断别人的话。因此听众在尝试听一个节目的时候会受到其他节目的沙哑背景的烦扰。用莫尔斯码的船岸通讯增加了它的脉冲调制符和对可笑的混响的冲击。

Professor Siepmann sums up the situation in the following words: "Private enterprise, over seven long years,failed to set its own house in order.Cut-throat competition at once retarded radio's orderly development and subjected listeners to intolerable strain and inconvenience."30 Siepmann教授用以下话语总结了这一情形：“7年多来，私人事业没能有序地建立它自己的商号。插播竞争立马阻碍了无线电的有序发展并且使听众屈服于难以忍受的限制和不便。”

Notwithstanding the general acceptance of these arguments and the eminence of the authorities who expound them, the views which have just been quoted are based on a misunderstanding of the nature of the problem. Mr. Justice Frankfurter seems to believe that federal regulation is needed because radio frequencies are limited in number and people want to use more of them than are available. But it is a commonplace of economics that almost all resources used in the economic system (and not simply radio and television frequencies) are limited in amount and scarce, in that people would like to use more than exists. Land, labor, and capital are all scarce, but this, of itself, does not call for government regulation. It is true that some mechanism has to be employed to decide who, out of the many claimants, should be allowed to use the scarce resource. But the way this is usually done in the American economic system is to employ the price mechanism, and this allocates resources to users without the need for government regulation.

尽管如此对争论的普遍接受、对此讲解的权力机构的卓越性以及已被引用的的观点基于对问题本质的误会。Justice Frankfurter先生似乎相信联邦法规是需要的，因为无线电频率在数量上有限并且人们想要使用的比可用的更多。但是这在经济学上很普遍，几乎所有的在经济体系里的资源（并非只是无线电和电视的频率）在数量上都是有限且稀缺的，因为人们想要使用比现存的更多。土地，劳动力和资金都是稀缺的，但是这本身不是对政府规章的召唤。事实上，一些机制不得不被采用于决定在众多的申请者中由谁来决定使用稀缺资源。但是这种常常被美国的经济体制所采用的方法就是价格机制，它把资源分配给使用者无需政府的法规。

Professor Siepmann seems to ascribe the confusion which existed before government regulation to a failure of private enterprise and the competitive system. But the real cause of the trouble was that no property rights were created in these scarce frequencies. We know from our ordinary experience that land can be allocated to land users without the need for government regulation by using the price mechanism. But if no property rights were created in land, so that everyone could use a tract of land, it is clear that there would be considerable confusion and that the price mechanism could not work because there would not be any property rights that could be acquired. If one person could use a piece of land for growing a crop, and then another person could come along and build a house on the land used for the crop, and then another could come along, tear down the house, and use the s pace as a parking lot, it would no doubt be accurate to describe the resulting situation as chaos. +

Siepmann教授似乎把在政府规章出来前的混乱归因于私人单位的失败和这一竞争体系。但是这一问题真正的起因是在这些稀缺的频率里没有建立财产权。从一般的经验里我们得知土地可以通过价格机制分配给土地所有者而不需要政府规制。但是如果在土地资源上没有建立财产权，那么每个人可以使用一大片土地，这很明显会变得相当的混乱并且价格机制不能运作，因为不存在任何可以获得的产权。如果一个人可以使用一片土地来种庄稼，那么另一个人可能也会来这在这土地上造一座房子用来种庄稼，还有的人会来拆了房子，用这空间来做停车场，它将毫无疑问地被精确地描述为因此而造成的混乱的情形。

+But it would be wrong to blame this on private enterprise and the competitive system. A private-enterprise system cannot function properly unless property rights are created in resources, and, when this is done, someone wishing to use a resource has to pay the owner to obtain it. Chaos disappears; and so does the government except that a legal system to define property rights and to arbitrate dis putes is, of course, necessary. But there is certainly no need for the kind of regulation which we now find in the American radio and television industry.

但是谴责私人单位和竞争体系可能是错误的。一个私人单位的体系不能适当地运作除非在资源上建立产权，而且当这样做了，一个人想要用这一资源的话就不得不付钱给所有者来获得它。混乱的出现；因此政府在法律体系以外使用定义产权和仲裁争议的方法当然是必须的。但是这并不需要这类我们现在在美国无线电和电视产业找到的规章。

In 1951, in the course of a comment dealing with the problem of standards in color television, Mr. Leo Herzel proposed that the price mechanism should be used to allocate frequencies. He said: 1951年，在解释处理电视机标准问题的过程中，Leo Herzel先生提议应该用价格机制来分配频率。他说：

The most important function of radio regulation is the allocation of a scarce factor of production-frequency channels. The FCC has to determine who will get the limited number of channels available at any one time. This is essentially an economic decision, not a policing decision.

无线电规章最重要的功能是对频道供应这一稀缺资源的分配。FCC（联邦通信委员会）不得不随时决定谁将得到有限的频道。这是一个必须的经济决定，不是一种监管决定。

And, later, Mr. Herzel suggested that channels should be leased to the highest bidder.83 This article brought a reply from Professor Dallas W. Smythe of the Institute of Communications Research of the University of Illinois and formerly chief economist of the Federal Communications Commission. In his article, Professor Smythe presented the case against the use of the price mechanism in broadcasting.32

后来，Herzel先生建议频道应该租给出价最高的投标者。这篇文章引起了，前联邦通信委员会首席经济师，伊利诺斯州大学通信研究学院Dallas W. S mythe教授的回应。在他的文章里，Smythe教授展示了一个反对在广播（产业）使用价格机制的案例。

First of all, Professor Smythe pointed out that commercial broadcasting was not a "dominant user of spectrum space" but "a minor claimant on it." He explained that "the radio s pectrum up to at least 1,000,000 Kc is susceptible of commercial exploitation, technologically. On this basis, the exclusive use of frequencies by broadcasters represents 2.3 per cent of the total and the

shared use, 7.2 per cent." But, according to Professor Smythe, even these percentages may overstate the importance of broadcasting. "The FCC has allocated the s pectrum to different users as far as 30,000,000 Kc. And on this basis commercial broadcasters use exclusively less than one tenth of one per cent, and, on a shared basis, two tenths of one per cent."33

首先，Smythe教授指出商业广播不是“在波谱空间里的主导使用者”而是“一个在这方面的少数申请者”。他解释道“无线电波谱多达至少1,000,000 Kc技术上可以经受商业开发。在这一基础上，广播公司专用频率只占了总数的百分之2.3，共用的占百分之7.2”但是，按照Smythe教授，甚至这些百分比可能夸大了广播的重要性。“FCC把波谱分配给不同的使用者直到30,000,000 Kc为止。在这一基础上，商业广播公司专用的少于百分之一的十分之一，在共享的基础上，少于百分之一的十分之二。”

Professor Smythe then went on to explain who it was that used most of the radio s pectrum. First, there were the military, the law-enforcement agencies, the fire-fighting agencies, the Weather Bureau, the Forestry Service, and the radio amateurs, "the last of which by definition could hardly be expected to pay for frequency use." (This is, of course, in accordance with the modern view that an amateur is someone who does not pay for the things he uses.) Then there were many commercial users other than broadcasters. There were the common carriers, radiotelegraph and radiotelephone; trans portation agencies, vessels on the high seas, railroads, street railways, busses, trucks, harbor craft, and taxis. There were also various s pecialized users, such as electric power, gas and water concerns, the oil industry (which used radio waves for communication and also for geophysical exploration), the motion-picture industry (for work on location), and so on. Smythe教授那时继续解释谁使用了最多的无线电波谱。首先，有军队，法律执行机构，消防机构，气象局，林业部，和无线电爱好者，“几乎不用期待最后的群体会为使用频率付费。”（这当然是依照现在的观点，业余爱好者是不会为他们使用的东西付费的。）此外，除了广播公司外还有很多商业使用者。有公用通信企业、无线电报和无线电话公司；物流代理、远洋船舶、铁路、电车、巴士、卡车、港务船和出租车。还有各种各样特殊的使用者，诸如电力、煤气和水相关的、石油产业（用无线电波通讯和地质勘探）、电影产业（为了外景拍摄工作）等等。

Professor Smythe commented:

Surely it is not seriously intended that the non-commercial radio users (such as police), the non-broadcast common carriers (such as radio-telegraph) and the non-broadcast commercial users (such as the oil industry) should compete with dollar bids against the broadcast users for channel allocations.

Smythe教授评论道：

确实，这不是真的意指非商业的无线电使用者（诸如警察），非广播用的一般公用通信企业（诸如无线电报）和非广播商业使用者（如石油产业）应当用资金投标的方式与广播使用者竞争无线电使用频道的分配。

T o this Mr. Herzel replied:

对此Herzel先生回应道：

It certainly is seriously suggested. Such users compete for all other kinds of equipment or else they don't get it. I should think the more interesting question is , why is it seriously suggested that they shouldn't compete for radio frequencies?

这的确是一项强烈的建议。这些使用者为所有其他类型的装备或他们没有得到的装备展开竞争。

我会认为这是一个更有趣的问题，为什么强烈建议他们不要为无线电频率竞争呢？

Certainly, it is not clear why we should have to rely on the Federal Communications Commission rather than the ordinary pricing mechanism to decide whether a particular frequency should be used by the police, or for a radiotelephone, or for a taxi service, or for an oil company for geophysical exploration, or by a motion-picture company to keep in touch with its film stars or for a broadcasting station. Indeed, the multiplicity of these varied uses would suggest that the advantages to be derived from relying on the pricing mechanism would be es pecially great in this case.

无疑地，我们为什么必须依赖联邦通信委员会而不是平常的价格机制来决定某一频率是否应该由警察来使用，或者用于无线电话、用于一家出租车公司、用于一家石油公司、用于地质勘探、或者用于电影公司与它的电影明星保持联系或者用于一家无线电台。确实，这些各式各样的应用的多样性会显得源自依靠价格机制的优势在这个案例里特别的大。

Professor Smythe also argued that the use of market controls depends on "the economic assumption that there is substantially perfect competition in the electronics field." This is a somewhat extreme view. An allocation scheme costs something to adminis ter, will itself lead to a malallocation of resources, and may encourage some monopolistic tendencies-all of which might well make us willing to tolerate a considerable amount of imperfect competition before substituting an allocation scheme for market controls. Nonetheless, the problem of monopoly is clearly one to be taken seriously. +

Smythe教授还争辩道市场控制的使用依赖于“一条经济学假设，即在电子领域存在大体上完美的竞争”。这是有点极端的看法。分配计划耗费一些行政成本，它自身会导致资源的不当安排，并且会鼓励一些垄断性趋势——所有这些会使我们在用分配计划代替市场调控前乐意去忍受相当大量的不完美的竞争。虽然如此，很清楚地，垄断的问题是需要严肃对待的。

+But this does not mean that frequencies should not be allocated by means of the market or that we should employ a s pecial organization, the Federal Communications Commission, for monopoly control in the broadcasting industry rather than the normal procedure. In fact, the antitrust laws do apply to broadcasting, and recently we have seen the Department of Justice taking action in a case in which the Federal Communications Commission had not thought it necessary to act.34 The situation is not simply one in which there are two organizations to carry out one law. There are, in effect, two laws. The Federal Communications Commission is not bound by the antitrust laws and may refuse an application for a license because of the monopolistic practices of the applicant, even though these may not have been illegal under the antitrust laws. Thus, the broadcasting industry, while subject to the antitrust laws, is also subject to another not on the statute book but one invented by the Commission.35

但是这并非意味着频率应当通过市场或者我们雇佣一个特殊的机构（联邦通信委员会）来分配，介于在广播产业中的垄断控制而不是一般的程序。事实上，反托拉斯法适用于广播业，并且最近我们看到司法部门在一件联邦通信委员会认为没必要理会的案子里采取了行动。这一情形并非只有两个机构在贯彻一部法律。在实际上，是两部法律。联邦通信委员会不受反托拉斯法的限制并且可能因为申请者的垄断行为拒绝其许可证的申请，尽管可能没有违反反托拉斯法。因此，广播业，一边服从与反托拉斯法，另一边服从于委员会发明的不是成文法的“法律”。

It may be wondered whether such an involved system is required for the broadcasting industry,