of film used in television is a power which the Commerce Clause itself, unaided by federal legislation, left the state free to exercise.
There are, of course, many instances of congressional regulation which Congress, in the exercise of its discretion, intended to be less than complete. ' * * * it often happens that there is only a partial exercise of that power by the federal government. In such cases the state may legislate freely upon those phases of the commerce which are left unregulated by the nation', Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 155, 786, 62 S. Ct. 491, 495, 86 L. Ed. 754, and, where there has been only a partial exercise of the power to regulate by Congress ' * * * it must be clear that the federal provisions are inconsistent with those of the state to justify the thwarting of state regulation.' The defendants contend that this is such a situation and we are thus brought to the question which lies at the threshold of the present case and which may be stated as follows:
Did Congress in enacting the Radio Act of 1927, 44 Stat. 1162, and the Communications Act of 1934, intend to occupy the entire field of communication by radio and television and to exclude the power of the states to regulate every phase of it, including censorship? More specifically, when Congress, in Section 326
of the Communications Act of 1934, 47 U.S.C.A. § 326, denied the Federal Communications Commission the power of censorship, did it in so doing manifest an intent to leave the states free to censor programs, or does this Section, taken in connection with the scope and purpose of the Act, amount to a prohibition of all censorship, both by its own agency and by any other authority national or state?
I am satisfied that in the field of television there has been a plenary exercise by Congress of the power to regulate and a complete occupation of the field, including censorship. Under the comprehensive scheme of regulation established by the Communications Act, the Commission can exercise effective control over the content of programs, and the fact that this scheme eliminates one particular method of control, namely, censorship in advance of showing, in favor of a less drastic one does not mean that that field is left untouched. As the Court said in National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 216, 63 S. Ct. 997, 1009, 87 L. Ed. 1344, the Act 'puts upon the Commission the burden of determining the composition of that traffic', and Congress has empowered the Commission to discharge its duty in this regard, by at least five provisions of the Act, namely, (1) the licensing requirements of the Act, providing for an inquiry by the Commission into the character of applicant for a station license, (2) the requirement that the same factors are to be considered by the Commission in passing upon applications for the renewal of licenses, Sec. 307(d), (3) the prohibition of Sections 309(b)(2) and 310(b) against the assignment or other transfer of a license without the written consent of the Commission given after securing full information, (4) the provision contained in Section 303(m)(1)(D) of the Act, giving the Commission authority to suspend the license of any operator upon proof sufficient to satisfy the Commission that the licensee 'has transmitted * * * communications containing profane or obscene words, language, or meaning * * * ' and (5) Section 1464 of Title 18 U.S.C.A., originally part of Section 326 of the Act, providing that 'Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $ 10,000 or imprisoned not more than two years, or both.'
It seems to me perfectly plain that Congress was definitely concerned with the question of possible misuse of the facilities of radio and television by broadcasting matter harmful to the public interest, that it intended to deal with that problem fully and that it did so, choosing a method which avoided the danger, always present in a system of censorship, of whittling away the constitutional guarantees of freedom of speech and press.
The conclusion reached upon this point is decisive of the case and it follows that the Regulation of the Board of Censors is invalid because it impinges upon a field of interstate commerce which Congress has pre-empted and is inconsistent with the statute and with the national policy adopted by Congress for the regulation and control of radio and television.
I think, however, that I should also state my conclusion that the Regulation is invalid because it would constitute an undue and unreasonable burden on interstate commerce in television broadcasting. Having found that Congress under the authorization of the Commerce Clause has fully occupied the field, it seems unnecessary to enter into a discussion of the principles which would govern had it not done so, but in order that the entire controversy together with the views of this Court may be fully before the appellate court, I state the conclusion.
Judgment may be entered in accordance with the foregoing.