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Telecommunication Carriers are a subset of Common Carriers. Telecommunications Carriers are regulated under Title II of the Communications Act.

See Prof. William Jones: The Common Carrier Concept as Applied to Telecommunications: A Historical Perspective



47 U.S.C. § 153(h)(1991) "Common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

Telecommunications carrier -- The term ''telecommunications carrier'' means any provider of telecommunications services, except that such term does not include aggregators of telecommunications services (as defined in section 226 of this title). A telecommunications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage." 47 USC § 153(44) (1999).

Statutory: CALEA

The term “telecommunications carrier”—

(A) means a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire; and

(B) includes—

(i) a person or entity engaged in providing commercial mobile service (as defined in section 332 (d) of this title); or

(ii) a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this subchapter; but

(C) does not include—

(i) persons or entities insofar as they are engaged in providing information services; and

(ii) any class or category of telecommunications carriers that the Commission exempts by rule after consultation with the Attorney General.

47 USC § 1001(8)(B)(ii)

Definition of Telecom Carrier under CALEA 18 USC 2510

(8) The term `telecommunications carrier'--

(A) means a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire; and

(B) includes--

(i) a person or entity engaged in providing commercial mobile service (as defined in section 332(d) of the Communications Act of 1934 (47 U.S.C. 332(d))); or
(ii) a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this title; but

(C) does not include--

(i) persons or entities insofar as they are engaged in providing information services; and
(ii) any class or category of telecommunications carriers that the Commission exempts by rule after consultation with the Attorney General.

"We also conclude that CALEA's definitions of 'telecommunications carrer' and 'information services' were not modified by the 1996 Act, and that the CALEA definitions therefor remain in force for purposes of CALEA.  The pertinent sections of CALEA are not part of the Communications Act.  Furthre, as we have previous noted, the 1996 Act expressly provides that it did not alter existing law by implication, and in the 1996 Act Congress did not repeal or even address the CALEA definitions.  Although we expect in virtually all cases the definitions of the two Acts will produce the same results, we conclude as a matter of law that the entitites and services subject to CALEA must be based on the CALEA definition discussed above, independently of their classification for the separate purposes of the of the Communications Act."  CITATION NEEDED


Circuit Court

In National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d 630 (D.C.Cir.), cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976) (NARUC I ), we observed that the essential element of common carriage is the carrier's undertaking " 'to carry for all people indifferently.' " [60] In the communications context, this means providing a service whereby customers may " 'transmit intelligence of their own design and choosing.' " Computer and Communications Industry Association v. Federal Communications Commission, 693 F.2D 198, 209, 224 U.S.APP.D.C. 83 (D.C. Cir. 1982)

Sharing of private line services as a nonprofit arrangment is not common carriage and thus not subject to regulation under this chapter. American Tel. & Tel. co. v. FCC, 572 F.2d 17 (2nd Cir. 1978), cert. denied,99 S. Ct. 213, 439 U.S. 875.

Primary sine qua non of common carrier status is a quasi-public character, which arises out of the undertaking to carry for all people indifferently; particular services offered need not be practically available to the entire public and specialized carrier whose service is of possible use to only a fraction of the population may nonetheless be a common carrier if he holds himself out to serve indifferently all potential users; it is not essential that there be a statutory or other legal commandment to serve indiscriminately, rather it is the practice of such indifferent service that confers "common carrier" status.
--National Ass'n of Regulatory Utility Com'rs v. FCC, 533 F.2d 601, 174 U.S. App. D.C. 374 (1976).

NARUC v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) (the concept of common carriage "does not mean a given carrier's services must practically be available to the entire public. One may be a common carrier though the nature of the service rendered is sufficiently specialized as to be of possible use to only a fraction of the total population."); State of Iowa v. FCC, D.C. Cir. No. 99-1149 (opinion issued June 27, 2000), slip op. at 6 ("The key factor" in common carriage "is that the operator offer indiscriminate service to whatever public its service may legally and practically be of use.") (quoting NARUC, 525 F.2d at 642).

Resellers of private line communications service were "common carriers" within meaning of this chapter and thus subject to its regulatory provisions. --AT&T v. FCC, 365 F.2d 486 (Cir. 1966), cert. denied, 385 U.S. 1008, 87 S. Ct. 714.

District Court

Association of local exchange carriers formed to file industry-wide acces charge tariffs on behalf of its members with the Federal Commmunications Commission (FCC) was not a "common carrier" within meaning of Communications Act, precluding district court from exercising subject mater jurisdiction in interexchange carrier's action challenging tariff. Allnet Communications Services, Inc. v. National Excahnge Carrier Ass'n., 741 F. Supp. 983 (DDC 1990), affrmd, 965 F.2d 1118, 296 U.S. App. D.C. 156. 

FCC Orders

 121.  Because enhanced service was not explicitly contemplated in the Communications Act of 1934, there is no more a requirement to confront it with a specific traditional regulatory mechanism than there was, for example, in the case of cable television, which has formal elements of common carriage and broadcast television, or of specialized mobile radio services, which bears many formal similarities to radio common carriage.  Precedent teaches that the Act is not so intractable as to require us to routinely bring new services within the provision of our Title II and III jurisdiction even though they may involve a component that is within our subject matter jurisdiction.  In fact, in GTE Service Corp. v. FCC, 474 F.2d 724 (2nd Cir. 1973), the court substantially affirmed a Commission decision the underlying premise of which was that not all services involving the electronic transmission of information are communications services subject to regulation under Title II of the act.
 122.  Precedent teaches us, also, that all those who provide some form of transmission services are not necessarily common carriers.  See, e.g., AT&T v. FCC, 572 F.2d 1725 (2d Cir. 1978) (sharing of communications services and facilities not common carriage and not subject to Title II); National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d 630 (D.C. Cir. 1976) (NARUC I) (SMRS); American Civil Liberties Union v. FCC, 523 F.2d 1344 (9th Cir. 1976) (CATV); Philadelphia Television Broadcasting Co. v. FCC, 359 F.2d 282 (D.C. Cir. 1966).  (FCC not required to treat cable television systems as common carriers nor to employ Title II regulatory tools.)  Although the term itself is difficult to define with any precision, a distinguishing characteristic is the quasi public undertaking to 'carry for all people indifferently.'  NARUC I, 525 F.2d at 641; National Association of Regulatory Utility Commissioners v. FCC, 533 F.2d 601, 608 (1976) (NARUC II) citing Seamon v. Royal Indemity Co., 279 F.2d 737, 739 (5th Cir. 1960) and cases cited therein.  While one may be a common carrier even though the nature of the service offered is of use to only a segment of the population, NARUC I, 525 F.2d at 641, '. . . a carrier will not be a common carrier where its practice is to make individualized decisions, in particular cases, whether and on what terms to deal.' Id.  At the same time, we recognize certain inadequacies of any definition of common carriage which is dependent entirely on the intentions of a service provider.  Instead, as the Court's opinion in NARUC I acknowledges, an element which must also be considered is any agency determination to impose a legal compulsion to serve indifferently.  NARUC I, 525 F.2d at 642.  We have specifically imposed no such obligation with respect to enhanced service providers.
 123.  Even this definition of common carriage cannot be readily applied to vendors of enhanced services.  Inherent in the offering of enhanced services is the ability of service providers to custom tailor their offerings to the particularized needs of their individual customers.  Thus, such services can vary from customer to customer as 'individualized decisions' are made as to how best to accommodate the processing needs of their various subscribers. Admittedly, vendors of enhanced services also have the ability, if they so desire, to provide these services on an indiscriminate basis.  Presumably, some do.  But 'this is not a sufficient basis for imposing the burdens that go with common carrier status.'  NARUC I at 644.  We cannot conclude that under the common law providers of these services are common carriers or that Congress intended that these services be regulated under our Title II of the Act. Indeed, to subject enhanced services to a common carrier scheme of regulation because of the presence of an indiscriminate offering to the public would negate the dynamics of computer technology in this area.  It would substantially affect not only the manner in which enhanced services are offered but also the ability of a vendor to more fully tailor the service to a given consumer's information processing needs.
--In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final Decision)

Before Congress adopted the Communications Act, the Supreme Court had already held many times that a company may be a common carrier in some of its functions while acting as a non common carrier in others. See, e.g., Railroad Company v. Lockwood, 17 Wall. 3857, 3877 (18738) (a common carrier may become a private carrier when, as a matter of accommodation or special arrangement, it undertakes to carry something not its business to carr); Express Cases, 117 U.S. (18867) (railroad companies are common carriers with respect to the general [public but may determine for themselves, under contract, the terms on which they will deal with express companies that use railroads to deliver packages).
Many judicial decisions since 193854 are in accord with this view. In 19767, for example, the D.C. Circuit noted that "it has long been held that 'a common carrier is such by virtue of his occupation,' that is by the actual activities he carries on . . . . Since it is clearly possible for a given entity to carry on many types of activities, it is at least logical to conclude that one can be a common carrier with regard to some activities but not others." National Ass'n of Regulatory Utility Commissioners v. FCC, 53838 F.2d 6701, 6708 (D.C. Cir. 19767) (NARUC II), cited with approval in FCC v. Midwest Video Corp., 45450 U.S. 6789, 701 and. 9 (1979) ("[a] cable system may operated as a common carrier with respect to a portion of its service only")." Janice Obuchowski, Must the Ninth Circuit's Reversal of Computer III Lead to Regulations of Enhanced Services?, 8 Comm.  Law. 1, 27 (Fall 1990).


"Md. Code., Pub. Util. Cos. § 1-101 (1998 Repl. Vol. 2001 Cum. Supp.) defines common carrier as including, for regulatory purposes, all who engage in public transportation of persons for hire."

California Civil Code s 2168 "Every one who offers to the public to carry persons, property, or messages, excepting only telegrapnic messages, is a common carrier of whatever he [or she] thus offers to carry."

the Connecticut Court of Appeas in Hunt v. Clifford stated "[a] common carrier of passenters undertakes to carry for hire, indiscriminately, all persons who may apply for passage, provided there is sufficient space or room available and no legal excuse ixists for refusing to accept them."  A carrier not meeting this criteria is deemd a private carrier for hire.-- Chad A. Gerardi, A Tale Involving the Magic Kingdom, Pirates, and a Court's Broad Interpretation of Common Carrier Liability, 1 Chap. L. Rev. 171, 180 (1998).

Origin of the 'Holding Out' Standard.

On the other hand, the 'holding out' test adopted by the NARUC I court for determining common carrier status appears to have developed out of the common law's development of special standards of liability for the care of goods imposed upon 'public occupations'. A carrier was frequently held to be a common calling in cases involving damage for goods, even though this had nothing to do with a common calling's duty to serve. In those cases, the common carrier was held to be an insurer against damage or loss of goods in his care, unless caused by an act of God or the public enemy.

Oliver Wendell Holmes examined this process at some length in his treatise, The Common Law. [Holmes, The Common Law, 160 (Harvard ed. 1963).] Basically, he argued that the insurer's liability of a carrier is a 'fragmentary survival from the general law of bailment ' which resulted from a confusion of precedents based upon different procedural forms, and also from conceptions of public policy. [Id. at p. 142.] The principle first appeared as dicta in the 1703 case of Coggs v. Bernard, where Chief Justice Hold stated that a bailee for hire exercising a common employment, such as a common carrier, was strictly liable for any damage or loss of goods in its charge, except when caused by acts of God or the public enemy. The carrier was thus an insurer of the goods being carried. Otherwise, the Chief Justice argued, carriers 'might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves.' [2 Ld.Raym., 909 (1714).] --[FCC 1981]

The dicta in this case was later affirmed by Lord Mansfield, who relied explicitly on considerations of policy, stating: 'To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier.' Foreward v. Pittard, 1 T.R. 27, 33 (1785). For these reasons, a common carrier was held to be an insurer of the safety of goods entrusted to him. A private carrier, however, was required only to use 'ordinary care,' and thus the distinction became crucial in liability cases. Virtually all of the subsequent common law cases defining common carriers in fact concern liability for damages, as opposed to the carrier's duty to serve. The definitions reflected this fact and, in addition, reflected a growing reluctance of the courts to impose this harsh standard of liability. [Indeed, Holmes doubted that there was a sound policy basis for the rule and suggested that the courts may well have hesitated to extend the significance of the term common carrier. The pertinent decisions appear to support Holmes. One line of cases reveals that the courts allowed carriers to insert exculpatory clauses in bills of lading. In the U.S., for example, the Supreme Court allowed carriers to contract away insurer's liability, but held that it would offend public policy if the carriers could avoid liability for actual negligence. New Jersey Navigation Company v. Merchant's Bank, 47 U.S. (How.) 344; Railroad Company v. Lockwood, 84 U.S. (17 Wall.) 357; Bank of Kentucky v. Adams Express Co., 93 U.S. (otto.) 1974).] --[FCC 1981]

Because it was held in Coggs v. Bernard that a private person transporting goods was not liable as an insurer, but only for his negligence the courts developed the rule that a carrier was a private carrier if it reserved to itself the right to deal with individual customers on a contractual basis, and was only a common carrier if it held itself out to serve the public indiscriminately. This new distinction made no sense in terms of the traditional carrier's duty to serve, for it allowed the carrier to avoid that duty simply by refusing to deal with customers who insisted on insurer's liability, or by otherwise dealing solely on a contractual basis. Nevertheless, this concept has survived. Indeed, most English carriers of goods by road to this day are not regarded as common carriers if they reserve to themselves the liberty to reject goods tendered to them. They thus avoid liability as insurers. [5 Halbury's Laws of England, 135-37 (4th ed. 1974).] --[FCC 1981]

The U.S. courts also adopted the private common carrier distinction as the dividing line for liability cases. But the private/common distinction, based upon whether one held oneself out to serve all, broke down when the issue was whether a duty to serve at reasonable rates could be imposed. Since the distinction had been devised for liability cases, the public duty to serve would have been rendered meaningless if it could be avoided merely by the carrier's choosing to deal only on a contractual basis as a private business. In fact, when the issue of regulating business by imposing the duty to serve all on reasonable terms finally did arise in the leading case of Munn v. Illinois, 94 U.S. 113 (1876), the Supreme Court looked to a different set of legal principles.--[FCC 1981]

In resolving this issue, the Court relied heavily upon an essay by Chief Justice Hale written in the late 1600's. That essay, part of a treatise on the common law relating to seaports, contained the following oft-quoted passage:

A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own . . .. If the taking or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the queen, . . . or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king's license or charger. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a street in a new building on his own land, it is now no longer bare private interest, but is affected by a public interest. [De Portibus Maris, Hargrove Law Tracts, 77-78 (1787).]

This public interest test provided the Munn court with a reasonable and flexible standard for subjecting to public regulatory private property dedicated to the public's use. Not everyone carrying on a trade would be subject to a public duty; rather it would extend only to those whose operations were 'affected with the public interest.' This test also formed the basis to require common carriers to serve the public at reasonable rates since these carriers provided an essential service on a monopoly basis. If the essential or monopoly character of a common carrier disappeared, for example with the growth of competing services, the duty to serve would no longer be imposed. (See paras. 7-8 supra) --[FCC 1981]

This approach was particularly congenial to changing economic thought and conditions. The laissez faire economics of Adam Smith emphasized the ordinary right of entrepreneurs to pursue their own private profit. On the other hand, the growth of the railroads and other utilities created massive new public interest problems, as the public became dependent upon these new, monopolistic enterprises. In Britain, Lord Hale's approach was followed in two early 19th Century cases. In Bolt v. Stennet, [8 T.R. 606, 101 Eng.Rep. 1572 (1800).] it was held that the owner of a licensed wharf must permit the use of his crane upon reasonable terms. In Allnutt v. Inglis, [12 East 527, 104 Eng.Rep. 206 (1810).] it was held that the owner of a warehouse with a Parliamentary monopoly to receive certain wines could not lawfully exclude from its docks the cargo of an owner who refused to pay an arbitrary storage charge, but must be content with a reasonable payment. As Lord Ellenborough explained, the owner was required to serve all at a reasonable price:

'There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but if for a particular purpose the public have a right to resort to his premises and make use of them, and he has a monopoly in them for that purpose, if he will take the benefit of that monopoly he must, as an equivalent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this company is, by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing. And, according to him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected. He is confined to take reasonable compensation only for those of the wharf.' [12 East at 537. ] --[FCC 1981]

Private v Public Carriers

Carriers who are not obligated to provide transportation to all who apply are not common carriers.  Rutledge Co-op, Ass'n v. Baughman, 153 Md. 297, 138 A. 29, 56 ALR 1042 (1927).

Persons transporting their own property are not common carriers.  Weller v. Kolb Bakery & Dairy, Inc., 176 Md. 191, 4 A.2d 130 (1939)

It has been argued that common callings included all businesses which dealt with the general public, as opposed to those that served only one "master." --[NY p. 40]

This theory as espoused by the commentators is that the word 'common simply meant 'business' and 'marks off the carrier not from other classes of business but from that carrier who carriers, not as a trade of business not for everybody but for himself or some particular employer.' Alder, 'Business Jurisprudence', 28 Harv.L.Rev. 135, 152 (1914). This theory points our that many occupations were at one time or another referred to as 'common' in the Year Books, including bakers, drivers, cooks, and builders. [Id. at 151.] Although those cases did not concern the duty to serve all, it is argued that all of the occupations referred to as 'common' were public employments and thus all had the same obligations to serve the public and all the same liability for failure to exercise due care in their trades. For example, in one case it was held necessary to prove a horse surgeon as common to establish liability for loss of a horse in the surgeon's care. [Y.B. 19 Hen. VI. 49, pl. 5.] Similarly, in the leading case of Coggs v. Bernard [2 Ld.Raym. 909 (1714).] the court ruled that a common carrier was liable for any damage to goods in his charge save those caused by acts of God or the public enemy, but that a private person who agrees to carry goods is liable only for negligence. One who undertook the business of a carrier, in this view, was a 'common' carrier with duties to the public; those duties did not apply to one whose profession or business was as a private carrier. [FCC 1981]

Private Carriage

"private carriage is characterized by a carrier choosing its clients on an individual basis and determining in each particular case whether and on what terms to serve.83"

83Id. at 1481 (quoting NARUC II, 533 F.2d at 608-09 and NARUC I, 525 F.2d at 643). See also Competition in the Interstate Interexchange Marketplace, Notice of Proposed Rulemaking, 5 FCC Rcd 2627, 2645 & n.195 [hereinafter Competitive Interexchange Notice].

-- In re Independent Data Communications Manufacturers Association, Inc., DA 95-2190, 1995 WL 613619 (FCC), 10 FCCR. 13,717, 10 FCC Rcd. 13,717, 1 Communications Reg. (P&F) 409, Order (October 18, 1995) (aka Frame Relay Order).

The first element-- holding service out as being available to the public--draws the line between common carriers subject to Title II regulation under the Communications Act of 1934 ("1934 Act") and private carriers subject only to the FCC's rarely used "ancillary" Title I jurisdiction.3... A railroad that lays a fiber-optic cable along its track and sells its capacity to a few communications providers likely is acting as a private carrier. --James H. Lister, The Rights of Common Carriers and the Decision Whether to be a Common Carrier or a non-regulated Communications Provider, 53 FCLJ 91, 93 (Dec. 2000)

FCC Purpose in Regulating Common Carriers

The Commission summarizes its mission with respect to common carriers as follows: “(1) to create and maintain a rapid, efficient communications network; (2) to ensure that adequate facilities are provided for the network; and (3) to require the provision of service pursuant to tariffs offering just and reasonable rates, practices, procedures and regulations.” -- US v ATT, 427 FSupp 57, Sec II (DCDC 1976).

Telecom Carriers

One must distinguish the notion of common carriage from several other intertwined concepts that are frequently but inaccurately used as synonyms. A common carrier need not be a "public utility" or a "regulated monopoly," and vice versa; for example, public buses operating as common carriers are usually neither utilities nor monopolies; conversely, public utilities in electricity provision are not usually common carriers.  Another concept, the "universal service obligation", is the requirement of a carrier to reach every willing user and desired destination, wherever located, while common carriage refers to service obligations toward users given a physical plant. Finally, "affordable rates," though often tied to common carriage, are a monopoly and utility issue; where common carriage is concerned with prices it is not with their absolute levels but rather with relative ones, to prevent price-discrimination as a way to unduly differentiate among users or uses.  -- Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435, Sec. II (1994).


CC Applied to Telecom

The New York Public Service Commission's authority was expanded to include communications by telephones and telegraph in 1911. By state, telegraph and telephone corporations were regulated and given the responsibilities of common carriers (such as non-discrimination, reasonable service availability, etc.), although there was no reference made to common carriage of communications. Public utility concepts of price and entry regulation were also applied. --[NY p. 43]

Interstate Commerce Commission

The Communications Act definition of common carriers was in large measure a reenactment of earlier federal legislation regulating telecom common carriers - the Mann-Elkin Act of 1910 [36 Stat. 539].

Communications companies came under the jurisdiction of the Interstate Commerce Commission in 1911. However, there was little enforcement or attention paid to telegraph and telephone issues by the ICC. In 1934, responsibility for oversight of communications was transferred to the FCC. --[NY p. 44]

FCC - Communications Act of 1934

By the Communications Act of 1934, Congress established the FCC. Title II of the Act (47 USC sections 201-221) prescribes the regulation of telecommunications common carriers, which are described in a circular fashion, as "any person engaged as a common carrier for hire" (47 USC 153(h)). FCC rules provide little illumination on the nature of common carriage, using the definition "any person engaged in rendering communications service for hire to the public" (47 CFR 21.2). [NY p. 45] The legislative history of the Communications Act provides no illucidation, saying that it was not intended to include "any person if not a common carrier in the ordinary sense of the term." [HR Conf. Rep. No. 1918, 73d Cong., 2d Sess. 46 (1934)] --[Jones A-8]



English Cases