[Minnesota] Law & Politics
December-January 2000

Lawsuits of the Year
First Amendment Law

The Beat Goes On
*FCC v. Beat Radio
*Ann Zewiske, Mansfield and Tanick, for Beat Radio

In 1996, the FCC seized equipment belonging to Beat Radio, a microbroadcaster of dance music at the 97.7 FM frequency. Operating at 20 watts, Beat Radio covered an approximate 12-mile area centered in downtown Minneapolis. At the time its equipment was seized, Beat Radio did not have a broadcast license, and the FCC prohibits broadcasts by unlicensed parties. However, the FCC only grants licenses to stations that broadcast at 100 watts or greater. Beat Radio's owner, Alan Freed, hopes to challenge this Catch-22 on First Amendment grounds, but to date, Beat Radio's court cases [sic] have accomplished nothing more than extended jurisdictional wrangling.

At issue, Mansfield and Tanick attorney Ann Zewiske explains, are two competing statutes, one that says this case can only be tried in the U.S. appellate court, by introducing an action separate from the government's original complaint, and another that says the issues can be raised in the district court, in direct response to the complaint. Complicating the matter is the fact that, to date, no court has issued an opinion interpreting the conflicting statutes.

At present, the case has bounced from the U.S. Federal District Court, which ruled that the case must be tried in the Washington, D.C. Court of Appeals, to the Eighth Circuit Court of Appeals, which reversed that decision and remanded the case to the district court in Minnesota. The government then appealed that decision, and it was sent back to the same Eighth Circuit three-judge panel for review.

At present, new oral arguments in the Eighth Circuit are scheduled to begin the end of October [1999]. "It's sad we have to spend so much time arguing about where we can argue," says Zewiske, who, together with Marshall Tanick, has represented Beat Radio from the case's beginning. Remarkably, the FCC is currently reviewing its license policy with an eye toward allowing microbroadcasting - a fact that is cold comfort to Freed, as early reports are that any past violators of the FCC's license policy would be excluded from the proposal. -KM

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