The IT Law Wiki

Early developments[]

The development of the electric telegraph in the 1840s and the telephone in the late 1870s made rapid long-distance communications possible. Both media began in local areas and then rapidly spread to connect large parts of the Nation and the world. Fewer than five years after its introduc­tion, over 47,000 telephones were being used in the United States. The growth of these commu­nications media accelerated the pace of social interaction, migration, commerce, and government activities.

The telegraph and, to a greater degree, the telephone continued to be the principal media for telecommunications for most of the 20th Century. The introduction of undersea cables in the late 1850s enabled worldwide communications structures and the expansion of the leading telecommunications companies to a dominant position in the industry.

The invention of "wireless telegraphy" (now known as "radio") at the turn of the 20th Century greatly increased the mobility of official and personal communications and made greater volumes of com­munications possible. Radio quickly emerged as both a medium for point-to-point (e.g., ship-to­-shore) and point-to-multipoint telecommunications (e.g., police dispatch) and a mass medium for information, entertainment, and commerce. Fueled by technological advances like the amplifying vacuum tube in 1913, both coast-to-coast telephony and transatlantic radio transmission became possible, weaving the world even closer together. The utility and consequent worldwide adoption and rapid evolution of these new commu­nications media prompted the creation of new legal and regulatory regimes both internationally and domestically to set rates, standardize terms of service, and allocate frequency bands to radio services by country.

The advent of international communications via telegraph led to the International Telegraph Convention and the formation of the International Telegraph Union in 1865. The United States became a member of the ITU in 1908. The Department of State has led U.S. delegations to this organization (and its successor) since the United States first joined it. Communication via radiotelegraph led to the International Radiotelegraph Convention in 1906.

On the domestic front, the Radio Act of 1912 established a radio licensing regime within the Department of Commerce and required certain ships to carry radios for communications. Due to conflict between amateur radio operators and the U.S. Navy and corporations, the Radio Act further regulated private radio communications, thus setting the precedent for federal regulation of wire­less communications.

In the Radio Act of 1927, Congress directed the transfer of this radio frequency licensing regime from the Department of Commerce (with the notable exception of federal agencies’ authorization to use radio frequencies) to a newly created five-member independent agency, the Federal Radio Commission. The Radio Act of 1927 also outlawed the interception of private radio messages and divulging their contents. Regulation of wireline communications remained separate from wire­less, however, with responsibility shared between the Commerce Department and the Interstate Commerce Commission. Following on the popularity of radio, television debuted in the 1920s and by the 1950s was firmly entrenched.

Establishment of the ITU and FCC[]

The next noteworthy developments came less than a decade later, in 1934. First, the International Telegraph Convention and the International Radiotelegraph Convention combined, and the International Telegraph Union was renamed the International Telecommunication Union (ITU). In 1949, the ITU became a specialized agency of the United Nations. The ITU Constitution and Convention are updated every four years and will next be negotiated again in 2010 at the ITU Plenipotentiary Conference in Veracruz, Mexico.

Second, coinciding with the establishment of the ITU, Congress enacted the Communications Act of 1934, which replaced the Federal Radio Commission with a new agency, the Federal Communications Commission (FCC) and consolidated in it authorities for both wireless and wireline communications. In particular, the 1934 Communications Act gave the FCC broad authority to regulate:

interstate and foreign commerce in communication by wire and radio so as to make available, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid efficient, Nation-wide, and world-wide wire and radio communica­tion service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication. . . .[1]

Since its inception, the FCC has remained the primary institution responsible for formulating and implementing U.S. policies and regulations governing private, commercial electronic communica­tions within the United States and between the United States and other countries. Its jurisdiction over “communication by wire and radio” has been reinforced by multiple amendments to the Communications Act over the years. This has enabled the FCC to affect the economic and technical development of virtually all types of electronic communications, including telegraph, telephone service, cable television, radio, television, wireless telecommunications and, more recently, emerg­ing advanced [[telecommunications] technologies and services.

Separate from the FCC, however, the White House with support from the Department of Commerce retained a role in management of the Federal government’s use of radio spectrum, and in the development of executive branch policies related to communications, for another 44 years.[2]

More recent developments[]

Innovation in electronic communications continued to progress during the 1940s. The need to deliver television signals to communities in remote mountain areas led to the early development of community antenna television (CATV) systems, which, with the adoption of coaxial cable, and more recently fiber optic cable, would later evolve into the modern cable television systems that now compete with telephone companies to deliver video, voice, and data services to customers. It was also during this decade that radio and telephony intersected with the invention of the transistor and the advent of mobile radiotelephone technology. Broader commercial and public use of mobile telephone service began in the 1970s, and the first commercial cellular networks were developed in 1982 and 1983. By 2004, wireless subscribership in the United States had exceeded 180 million.

The first experimental communications satellite was launched in 1962. It was the first satellite to receive, amplify, and simultaneously re-transmit signals from earth. The development of satellite communications available not only to governments but also the commercial sector and individuals led to even greater volumes of communications worldwide.

As noted above, for most of the 20th Century, the White House directly managed executive branch communications policy and the Federal government’s use of the radio spectrum, supported by the Department of Commerce. In 1978, however, the Carter Administration disaggregated and reorganized telecommunications functions within the Executive Branch. In Executive Order 12046,[3] President Carter dissolved the White House Office of Telecommunications Policy (OTP) and trans­ferred its responsibilities, respectively, either to the Commerce Department or back to the President for re-delegation to other components within his Executive Office.

Responsibility for Federal radio spectrum management and development and presentation of telecommunications and information policies on behalf of the Executive Branch were transferred to the Commerce Department, and a new agency, the National Telecommunications and Information Administration (NTIA), was established to perform them.[4] These responsibilities were codified by the NTIA Organization Act in 1992.[5] By contrast, OTP’s responsibility to advise the President, and develop and establish policies, regarding procurement and management of Federal telecommuni­cations systems, were reassigned to the Office of Management and Budget (OMB).[6] Similarly, OTP’s responsibilities relating to emergency and national security communications were reassigned to the National Security Council (NSC) and the Office of Science and Technology Policy (OSTP).[7]

Regulation of surveillance activities[]

Use of electronic surveillance for legitimate purposes such as intelligence and law enforcement investigation, as well as for illegitimate purposes, spurred enactment of a number of laws intended to comprehensively address such activities. Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of domestic telephone or telegraph communications during the First World War.[8] The Communications Act of 1934 extended the ban on intercepting and divulging of messages to telephone and telegraph communications. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act (the Federal Wiretap Act),[9] and 18 years later enacted the Electronic Communications Privacy Act of 1986 (ECPA),[10] which substantially revised Title III to provide coverage for the technological advances developed in the area of electronic com­munications since the passage of the original act. In 1978, Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA),[11] which established the framework for conducting electronic surveillance for foreign intelligence purposes.[12]


  1. 47 U.S.C. §151.
  2. Over the course of time, telecommunications policy in the White House was managed variously by a Telecommunications Advisor to the President, 1951-53; the Office of Defense Mobilization (later the Office of Defense and Civilian Mobilization), 1953-61; the Office of Emergency Planning (later the Office of Emergency Preparedness), 1961-70; and, finally, the Office of Telecommunications Policy, 1970­-78. See National Archives & Records Administration, Records of the National Telecommunications and Information Administration, §417.1 Administrative History.[1]
  3. Exec. Order 12046, Relating to the transfer of telecommunications functions (Mar. 27, 1978), 43 Fed. Reg. 13349, 3 C.F.R., 1978 Comp., at 158.
  4. While NTIA is the principal adviser to the President on matters related to telecommunications, other Federal agencies routinely repre­ sent executive branch views on matters related to the public safety and national security before the FCC. For example, in the context of the Communications Assistance for Law Enforcement Act (CALEA), the Department of Justice and the Federal Bureau of Investigation have submitted comments regarding published industry standards that do not satisfy CALEA’s requirements or adequately address law enforcement and national security equities.
  5. 47 U.S.C. §901 et seq.
  6. Exec. Order 12046, §3-1.
  7. Id. §4. These responsibilities included the President’s war power functions under Section 706 of the Communications Act, 47 U.S.C. §606, policy direction of the development and operation of the National Communications System (NCS), and coordinating the develop­ment of policy, plans, programs and standards for the mobilization and use of the Nation’s telecommunications resources during a crisis. Id. §§4-101, 4-201, 4-301.
  8. Pub. L. No. 230, 65th Cong., 2d Sess., 40 Stat. 1017-18 (1918), 56 Cong. Rec. 10761-765.
  9. 18 U.S.C. §2510 et seq.
  10. Pub. L. No. 99-508.
  11. 50 U.S.C. §1801 et seq.
  12. While Title III governs domestic surveillance and FISA relates to surveillance conducted for foreign intelligence purposes, the two laws share several common characteristics. Both prescribe authorization procedures that must be followed before electronic surveillance can be conducted, including judicial approval of surveillance applications; minimization of interceptions by surveilling officials; and limitations on the use of intercepted information. Both statutes also impose criminal and civil penalties on unauthorized surveillance activities. See U.S. Department of Justice, Criminal Resource Manual, §1073 The Foreign Intelligence Surveillance Act.[2]


  • The White House, Cyberspace Policy Review, Assuring a Trusted and Resilient Information and Communications Infrastructure, App. C (2009).