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wired.com
October 6, 2000
Radio Operator Wants Station Back Alan Fried exhausted his lower-court appeals to defend himself against the government's seizure, and and is asking the Supreme Court to review his case.
by Elisa Batista A Minneapolis man whose radio equipment was seized by the Federal Communications Commission after he operated an alternative music station without a spectrum license is taking his case to the Supreme Court.Whether the court will listen is another matter.
At issue, according to Fried's petition, is whether a micro-radio broadcaster is entitled to raise a constitutional defense to the government's forfeiture action in the District Court. Fried is arguing under First Amendment grounds.
"What we're trying to establish in this case is for micro-radio broadcasters to have more defenses," said Scott Bullock, senior attorney for the Institute for Justice that filed the Supreme Court petition on Fried's behalf.
"Some courts say they can't raise defenses, others say you have to go to the FCC. We're hoping ... the Supreme Court can step in and allow micro-radio broadcasters to defend their free speech right."
Many micro-radio broadcasters have challenged the constitutionality of the FCC policy by stating their First Amendment rights to free speech are violated when they cannot legally obtain a license to air their content, said Boston University telecommunications law professor T. Barton Carter.
But, he said, no one has been successful because the FCC has sole jurisdiction in the matter of who receives spectrum licenses.
Fried hopes to become the first.
"Our case is different from the others," Fried said. "We did ask for a waiver. The court said we have to ask for a waiver but [the FCC] did not respond whatsoever."
In 1996 Fried received a letter from the FCC asking him not to operate his station without a license. Fried filed a waiver and shot off a letter to the FCC challenging the constitutionality of its policy, which did not provide any licenses for stations operating under 100 watts.
But since Fried broke the law in operating his station anyway, Carter doubts his defense against the seizure of property will hold in court.
"In many cases, under the law, you can't do something that is against the law and turn around and say 'that's my defense,'" Carter said. "He was technically using the equipment to commit an illegal act.
"Again, what he is saying in essence ... [is] 'these are the penalties, they didn't let me defend myself aginst the penalty.'"
Fried, however, says his case isn't about the seizure of his property, but the constitutionality of the policy itself.
"We're saying it's improper for the government to prohibit [low power radio licenses) in the first place," he said. "I don't think anyone would argue that Rosa Parks was wrong to sit in the front of the bus though there was a law against it."
If Fried doesn't get to present his case to the Supreme Court, all is not lost for small-time radio operators.
Current regulations don't allow anyone to operate a radio station under 100 watts. But in January, the FCC announced that policy had changed, and it began accepting license applications for 10-watt to 100-watt stations.
But even though the FCC intends to license small stations, questions remain regarding what restrictions, and how many stations, could be licensed.
Opponents of small-scale operators -- including National Public Radio and the National Association of Broadcasters -- caution that without strict regulations, there could be interference in the airwaves. As for Fried -- not Alan Freed, the legendary broadcaster who coined the term "Rock 'n Roll" -- he may be out of luck altogether. According to an FCC spokesman, anyone caught operating without a license will automatically be denied one in the future.
Fried -- who operated a station at 20 watts called "The Beat" -- said he never received a complaint that it caused interference.
In 1996, he received a letter from the FCC asking him not to operate without a license. Fried said he promptly sent another letter challenging the constitutionality of the FCC policy. He never received a response to that letter. Soon after, the FCC seized his equipment.
"He requested a waiver. Rather than give him a waiver, they sent in a Gestapo," said Fried's attorney Marshall H. Tanick.
Naturally, Fried believes those tactics are unacceptable.
"We have not been able to get to a court of law to argue the merits of this case," Fried said. "At this level, the petition to the Supreme Court is to discuss and clarify what kind of defenses one can raise."
Fried's attorney says this case is different from others in that the government provoked him by overtaking private property -- and that Fried is only defending himself.
"All forfeiture cases should be heard in a trial court," Tanick said. "That's been the focus of this proceeding. We're entitled to defend ourselves."
The Minnesota [U.S.] District Court ruled against Fried because "the Court of Appeals, not the District Court, has exclusive jurisdiction to adjudicate any challenge to the validity of FCC regulations."
The U.S. 8th Circuit Court of Appeals ruled on March 27 that Fried should have applied for a license and requested a waiver. Then, the court said, if his application was denied he could appeal the decision.
"We have nothing to appeal from. ... They just seized property," Tanick said.
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