Unconstitutional Federal Regulations

Well, that was an enjoyable survey of Federal legislation. Of course, the previous list is not exhaustive. Interested readers are urged to go to the library and take a look at the United States Code themselves, or read it on the Internet (see the Further Reading chapter).

Now we move to a different set of "laws", called "regulations".

These "laws" have two strikes against them (if only two strikes made an out!). They're not only opposed to the First Amendment (if passed by Congress), but also to Article I, Section I. According to that section,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Regulations, alas, are not created by Congress, but by administrative bodies such as the FCC and IRS. Illegal, of course. Remember, in Perry, the Court saw legislative action as "the unilateral promulgation of a rule with continuing legal effect." [1] The long and short of it is that Congress has, for many years, unconstitutionally delegated its legislative power to unauthorized branches. [2]

Strictly speaking then, the following regulations are not "laws", but just words on a page. However you want to characterize them, they're real - and they're doubly unconstitutional.

30 C.F.R §2.7 Identification and markings
The information security system requires that standard markings be applied to classified information. Except in extraordinary circumstances as provided in section 1.5(a) of the Order, or asindicated herein, the marking of paper and electronically created documents shall not deviate from the following prescribed formats. These markings shall also be affixed to material other than paperand electronically created documents, including file folders, film,tape, etc., or the originator shall provide holders or recipients of the information with written instructions for protecting theinformation.
(b) Unless the portion marking requirement has been waived as authorized, each portion of a document, including subjects and titles, shall be marked by placing a parenthetical designation either immediately preceding or following the text to which it applies. The symbols, '(TS)' for Top Secret, '(S)' for Secret,'(C)' for Confidential, and '(U)' for Unclassified shall be used for this purpose ...

47 CFR §73.1225 Station inspections by FCC
(a) The licensee of a broadcast station shall make the station available for inspection by representatives of the FCC during the station's business hours, or at any time it is in operation....
(c) The following records shall be made available by all broadcast stations upon request by representatives of the FCC....
(5) Station logs....

47 CFR §73.1226 Availability to FCC of station logs and records
The following shall be made available to any authorized representative of the FCC upon request:
(a) Station records and logs shall be made available for inspection or duplication at the request of the FCC or its representative. Such logs or records may be removed from the licensee's possession by an FCC representative or, upon request, shall be mailed by the licensee to the FCC by either registered mail, return receipt requested, or certified mail, return receipt requested....

47 CFR §73.1212 Sponsorship identification... related requirements
(a) When a broadcast station transmits any matter for which money, service, or other valuable consideration is either directly or indirectly paid or promised to, or charged or accepted by such station, the station, at the time of the broadcast, shall announce:
(1) That such matter is sponsored, paid for, or furnished, either in whole or in part, and
(2) By whom or on whose behalf such consideration was supplied...
(ii) In the case of any television political advertisement concerning candidatess for public office, the sponsor shall be identified with letters equal to or greater than four percent of the vertical picture height that air for not less than four seconds.
(d) In the case of any political broadcast matter or any broadcast matter involving the discussion of a controversial issue of public importance for which any film, record, transcription, talent, script, or other material or service of any kind is furnished, either directly or indirectly, to a station as an inducement for broadcasting such matter, an announcement shall be made both at the beginning and conclusion of such broadcast on which such material or service is used that such film, record, transcription, talent, script, or other material or service has been furnished to such station in connection with the transmission of such broadcast matter...

47 CFR §73.1210 TV/FM dual-language broadcasting in Puerto Rico
(b) Television broadcast licensees in Puerto Rico may enter into dual-language time purchase agreements with FM broadcast licensees, subject to the following conditions:
(1) All such agreements shall be reduced to writing and retained by the licensee for possible Commission inspection...
(2) All such agreements shall specify that the FM licensee will monitor sound track material with a view to rejecting any material deemed to be inappropriate or objectionable for broadcast exposure.
(3) No television or FM broadcast station may devote more than 15 hours per week to dual-language broadcasting, nor may more than three (3) hours of such programming be presented on any given day.

47 CFR §73.1920 Personal attacks
(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the persons or group attacked:
(1) Notification of the date, time and identification of the broadcast;
(2) A script or tape (or an accurate summary if a script or tape is not available) of the attack; and
(3) An offer of a reasonable opportunity to respond over the licensee's facilities.
(b) The provisions of paragraph (a) of this section shall not apply to broadcast material which falls within one or more of the following categories:
(1) Personal attacks on foreign groups or foreign public figures;
(2) Personal attacks occurring during uses by legally qualified candidates,
(3) Personal attacks made during broadcasts not included in paragraph (b) (2) of this section and made by legally qualified candidates, their authorized spokespersons, or those associated with them In the campaign, on other such candidates, their authorized spokespersons or persons associated with the candidates in the campaign; and
(4) Bona fide newscasts, bona fide news interviews, and on-the-spot coverage of bona fide news events, including commentary or analysis contained in the foregoing programs.
(c) The provisions of paragraph (a) of this section shall be applicable to editorials of the licensee, except in the case of noncommercial educational stations since they are precluded from editorializing (section 399 (a), Communications Act).

An interesting sidenote here: In FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court held 47 U.S.C. §399 unconstitutional. That law mandated a prohibition against "editorializing" by noncommercial educational stations. So how come this FCC regulation /law is still on the books?

47 CFR §73.1930 Political editorials
(a) Where a licensee, in an editorial,
(1) Endorses or,
(2) Opposes a legally qualified candidate or candidates, the licensee shall, with 24 hours after the editorial, transmit to, respectively,
(i) The other qualified candidate or candidates for the same office or,
(ii) The candidate opposed in the editorial,
(A) Notification of the date and the time of the editorial,
(B) A script or tape of the editorial and
(C) An offer of reasonable opportunity for the candidate or a spokesman of the candidate to respond over the licensee's facilities. Where such editorials are broadcast on the day of the election or within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.

47 CFR §73.1745 Unauthorized operation
(a) No broadcast station shall operate at times, or with modes or power, other than those specified and made a part of the license, unless otherwise provided in this part.
(b) Any unauthorized departure from an operating schedule which is required to be filed with the FCC in Washington, D.C, will be considered as a violation of a material term of the licensee.

47 CFR 73.1800 General requirements related to the station log
(a) The licensee of each station must maintain a station log as required by §73.1820. This log shall be kept by station employees competent to do so, having actual knowledge of the facts required. All entries, whether required or not by the provisions of this part, must accurately reflect the station operation. Any employee making a log entry shall sign the log, thereby attesting to the fact that the entry, or any correction or addition made thereto, is an accurate representation of what transpired.
(b) The logs shall be kept in an orderly and leglble manner, in suitable form and in such detail that the data required for the particular class of station concerned are readily available. Key letters or abbreviations may be used if the proper meaning or explanation is contained elsewhere in the log. Each sheet must be numbered and dated....
(c) Any necessary corrections of a manually kept log after it has been signed in accordance with paragraph (a) of this section shall be made only by striking out the erroneous portion and making a corrective explanation on the log or attachment to it. Such corrections shall be dated and signed by the person who kept the log or the station chief operator, the station manager or an officer of the licensee.
(d) No automatically kept log shall be altered in any way after entries have been recorded. When automatic logging processes fail or malfunction, the log must be kept manually for that period and in accordance with the requirements of this section.
(e) No log, or portion thereof, shall be erased, obliterated or willfully destroyed during the period in which it is required to be retained....

47 CFR §95.403 Am I eligible to operate a CB station?
You are authorized to operate a CB station unless
(a) You are a foreign government, a representative of a foreign government, or a federal government agency; or
(b) The FCC has issued a cease and desist order to you, and the order is still in effect.

47 CFR §95.412 What communications may be transmitted?
(a) You may use your CB station to transmit two-way plain language communications. Two-way plain language communications are communications without codes or coded messages. Operating signals such as "ten codes" are not considered codes or coded messages. You may transmit two-way plain language communications only to other CB stations, to units of your own CB station or to authorized government stations on CB frequencies about -
(l) Your personal or business activities or those of members of your immediate family living in your household;
(2) Emergencies (see CB Rule 18, §95.418);
(3) Traveler assistance (see CB Rule 18, &#16795.418); or
(4) Civil defense activities in connection with officlal tests or drills conducted by, or actual emergencies announced by, the civil defense agency with authority over the area in which your station is located.
(b) You may use your CB station to transmit a tone signal only when the signal is used to make contact or to continue communications. (Examples of circuits using these signals are tone operated squelch and selective calling circuits.) If the signal is an audible tone, it must last no longer than 15 seconds at one time. If the signa1 is a subaudible tone, it may be transmitted contlnuously only as long as you are talking.
(c) You may use your CB station to transmit one-way communications (messages which are not intended to establish communications between two or more particular CB stations) only for emergency communications, traveler assistance, brief tests (radio checks) or voice paging.

47 CFR §95.413 What communications are prohibited?
(a) You must not use a CB station -
(1) In connection with any activity which is against federal, state or local law;...
(5) To advertise or solicit the sale of any goods or services;...
(9) To communicate with, or attempt to communicate with, any CB station more than 250 kilometers (155.3 miles) away;
(10) To advertise a political candidate or political campaign; (you may use your CB radio for the business or organizational aspects of a campaign, if you follow all other applicable rules);
(11) To communicate with stations in other countries, except General Radio Service stations in Canada;...
(b) You must not use a CB station to transmit communications for live or delayed rebroadcast on a radio or television broadcast station. You may use your CB station to gather news items or to prepare programs.

47 CFR §95.416 Do I have to limit the length of my communications?
(a) You must limit your CB communications to the minimum practical time.
(b) If you are communicating with another CB station or stations, you, and the stations communicating with you, must limit each of your conversations to no more than five continuous minutes.
(c) At the end of your conversation, you, and the stations communicating with you, must not transmit again for at least one minute.

47 CFR §95.419 May I operate my CB station by remote control?
(a) You may not operate a CB station transmitter by radio remote control.
(b) You may operate a CB transmitter by wireline remote control if you obtain specific approval in writing from the FCC. To obtain FCC approval, you must show why you need to operate your station by wireline remote control. Send your request and Justification to FCC, 1270 Fairfield Road, Gettysburg, PA 17325-7245. If you receive FCC approval, you must keep the approval as part of your station records. (See CB Rule 27, &#16795.427.)

47 CFR §95.421 What are the penalties for violating these rules?
(a) If the FCC finds that you have willfully or repeatedly violated the Communications Act or the FCC Rules, you may have to pay as much as $10,000 for each violation, up to a total of $75,000. (See section 503(b) of the Communications Act.)

47 CFR §95.422 How do I answer correspondence from the FCC?
(a) If it appears to the FCC that you have violated the Communications Act or these rules, the FCC may send you a discrepancy notice.
(b) Within the time Period stated in the notice, you must answer with:
(1) A complete written statement about the apparent discrepancy;
(2) A complete written statement about any action you have taken to correct the apparent violation and to prevent it from happening again; and
(3) The name of the person operating at the time of the apparent violation.
(c) If the FCC sends you a letter asking you questions about your CB radio station or its operation, you must answer each of the questions with a complete written statement within the time period stated in the letter.
(d) You must not shorten your answer by references to other communications or notices.
(e) You must send your answer to the FCC office which sent you the notice.
(f) You must keep a copy of your answer in your station records. (See CB Rule 27, &#16795.427.)

47 CFR §97.5 Station license required.
(a) When a station is transmitting on any amateur service frequency . . . the person having physical control of the apparatus must hold an FCC-issued written authorization for an amateur station.

47 CFR §97.113 Prohibited transmissions.
(a) No amateur station shall transmit:
(1) Communications specifically prohibited elsewhere in this part;
(2) Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules;...
(4) ... messages in codes or ciphers intended to obscure the meaning thereof, except as otherwise provided herein..
(5) Communications, on a regular basis, which could reasonably be furnished alternatively through other radio services.
(b) An amateur station shall not engage in any form of broadcasting , nor may an amateur station transmit oneway communications except as specifically provided in these rules; nor shall an amateur station engage in any activity related to program production or news gathering for broadcasting purposes , except that communications directly related to the immediate safety of human life or the protection of property may be provided by amateur stations to broadcasters for dissemination to the public where no other means of communication is reasonably available before or at the time of the event.

The First Amendment Vs. Federal Copyright Law

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1 Perry, pp. 42-3.
2 For more on this concept of delegation, see my chapter in this topic in
Why We Need A New Constitution, extracted from my book The 21st Century Constitution, available through the Online Book Initiative.