Baker v. United States, 8452.

• Decision Date: 16 December 1937
• Docket Number: No. 8452.,8452.
• Citation: 93 F.2d 332
• Parties: BAKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F.2d 332 (1937)

BAKER v. UNITED STATES.^*

No. 8452.

Circuit Court of Appeals, Fifth Circuit.

December 16, 1937.

A. G. Bush, of Davenport, Iowa, and Nat B. King, of Laredo, Tex., for appellants.

Douglas W. McGregor, U. S. Atty., and George O'Brien John, Asst. U. S. Atty., both of Houston, Tex.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Norman Baker and E. R. Rood were indicted and convicted for conspiring to violate, and for violating, section 325(b) of the Communications Act of 1934, 48 Stat. p. 1091, 47 U.S.C.A. § 325(b). Only one of their contentions, raised by demurrer and by motion for directed verdict and by request to charge, needs to be considered, to wit, that what they were doing is not a violation of the statute properly construed.

Baker was operating a radio broadcasting station in Mexico, near the international boundary, which could be heard over a great part of the United States. In Laredo, Tex., he and Rood had offices where and recording apparatus by which talks in English which they made were recorded on discs resembling phonograph records, which were physically sent into Mexico to the radio station and there played so as to reproduce the speeches and to broadcast them over the radio to be heard in the United States. They had no permit so to do.

Section 501 of the act, 47 U.S.C.A. § 501 provides punishment for anyone who wilfully and knowingly does any act or thing prohibited by it or declared unlawful. Section 325(b), italicized for present emphasis, reads: "No person shall be permitted to locate, use, or maintain a radio broadcast studio or other place or apparatus from which or whereby sound waves are converted into electrical energy, or mechanical or physical reproduction of sound waves produced, and caused to be transmitted or delivered to a radio station in a foreign country for the purpose of being broadcast from any radio station there having a power output of sufficient intensity and/or being so located geographically that its emissions may be received consistently in the United States, without first obtaining a permit from the Commission upon proper application therefor."

We reject the contention that the words "No person shall be permitted" make the section merely a direction to the Commission in issuing permits, and not a prohibition laid on the public. The full expression is "No one shall be permitted" to do the named things "without a permit from the Commission." While tautological, perhaps, the meaning clearly is that no person shall do those things without a permit.

What things are forbidden? A radio station or other place from which, or apparatus whereby, (first) sound waves are converted into electrical energy, or (second) from which or whereby mechanical or physical reproduction of sound waves is produced, and, in either case, caused to be transmitted or delivered to a radio station located in a foreign country but effective in the United...