Radio Business Report
March 8, 1999

Pirate wins a round in federal court

Minneapolis pirate broadcaster Alan Freed has not only won his day in court, but put the FCC on the defensive. The 8th Circuit Court of Appeals reversed a district court's 1996 order to shut Freed's "Beat Radio" down and confiscate his equipment (Freed was a DJ at a local dance club and was doing live broadcasts). [Beat note: Alan was not a DJ at a local dance club and was not doing live broadcasts.]

The decision means a microbroadcaster can now raise constitutional defenses in federal court, priming the system for a new precedent. Says Scott Bullock, Senior Attorney for D.C.-based Institute for Justice, which is defending farmer/pirate broadcaster Roy Neset in North Dakota: "It's the first time that a court has held that a microbroadcaster can challenge the constitutionality of the microradio prohibition. The Stephen Dunifer court has said you can't [Beat note: Judge Wilken said she did have jurisdiction], the district court in the North Dakota case said you cannot do that, the district court originally in Minnesota in the Beat Radio case said you can't do that, and now the 8th Circuit said in a 2-1 decision that you can." Neset's case is also pending before the 8th Circuit - oral arguments will take place in May or June.

Freed began operating his station on 97.7 mhz in 1996. The first complaint was called into the FCC in July of that year, and in August, the FCC mailed its standard warning letter, allowing 10 days to shut down, after which the equipment could be seized. [Beat note: the "standard warning letter" simply asks for a response to the allegations within a 10-day period and makes no mention of confiscating property, though it does attempt to scare recipients with the reference to fines and imprisonment.] Freed responded that microbroadcasting is within First Amendment rights and requested a waiver. He continued broadcasting. Freed's equipment was seized 11/96 after the federal district court agreed with the government and ordered him off the air. [Beat note: the court did not order Alan off the air. It merely allowed the government to seize property, which had the effect of silencing the station.]

But now, the FCC may have to defend its policies in federal district court. Said Bullock: "What the FCC wanted to do was file a lawsuit, haul [pirates] into federal court, and only present the issue that they were broadcasting without a license. [Beat note: in actuality, when arresting property - the strategy used against Beat Radio - the FCC doesn't expect many, if any, unlicensed broadcasters to respond in court. Their only goal is to remove stations from the air.] No defenses, including constitutional, could be raised. You couldn't challenge the regulations in court. The 8th Circuit said you can raise these defenses in federal district court."

What will happen now, considering the FCC may have to defend itself against something Chairman Bill Kennard is trying to push through and essentially make legal? "I think it's going to put them into a box - here they have to defend their current policy when they're claiming the current policy is probably not a good idea," said Bullock. "The outcome could be that the current regulations are declared unconstitutional. It's up to the judge, but he could allow the unlicensed people to remain on the air, pending new rules by the FCC, and I think in declaring it unconstitutional would be a great incentive to the FCC to get on the ball and repeal the prohibition on microradio."

RBR observation: Maybe Kennard is psychic and and knew this was coming all along! If courts start ruling against the FCC, action on the LPFM petition could be faster than any of the parties expected. - CM

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