This is unusual: the Federal Communications Commission has instigated a civil lawsuit in the Western District Court of Texas against Walter Olenick and M. Rae Nadler-Olenick, the proprietors of “Texas Liberty Radio,” which until late last year occupied 90.1 FM in Austin, Texas.
The facts are fairly clear: sometime in 2013, the FCC received a complaint about Texas Liberty Radio’s existence. That August, field agents from Houston traveled to Austin and found the station, measured its power, and confirmed it did not have a license. The recently-filed court documents contain some hand-written notes from field agents about the station, including the possible apartment it was broadcasting from, license plate numbers of cars in the parking lot, and notes on the station’s programming, which field agents noted included stuff from “Alex Jones” and “infowars.”
On September 6, 2013, agents sent the Olenicks a Notice of Unlicensed Operation. They responded within a week, asking the agent whose name is on the NOUO to “kindly never bother us with your harrassment under color of law and office again.” You see, the Olenicks consider themselves “sovereign citizens,” a movement among the right-wing that refuses to recognize the authority of the federal government. According to “sovereign citizens,” only state and local laws, combined with common law, are the true nexus of legal power in the United States.
“[W]e recognize your asserted choice of law, and if you feel the need to communicate further with Walter Olenick or M. Rae Nadler Olenick, knock yourself out,” the two wrote. “[N]o amount of alleged commercial nexus is going to matter, anyway, because under that choice of law and in that capacity, which capacity and choice of law are totally beyond ‘this state,” which renders your demand letter all the more facially preposterous, we are not aware of any relevant commercial nexus with your company.” Unless the FCC was willing to sign a “treaty” with the Olenicks directly, they simply refused to accept the FCC’s jurisdiction over the airwaves.
That November, the same field agent (as the penmanship of the handwritten notes are identical) went back to Austin and re-visited Liberty Radio, This time, he made a four-minute recording of the station and drew a little map as to where he suspected the station was broadcasting from.
The next contact was in February of 2014, when the agency assessed a $15,000 Notice of Apparent Liability against the Olenicks. In the NAL, the FCC explicitly asserts its jurisdiction to enforce the broadcast license requirement. The Olenicks responded in March, calling the FCC’s claims “intentionally fraudulent” and that “the entire fcc [sic] world is about to find out; namely whether we know enough about this system to avoid shishkabobbing [sic] ourselves. We’re in for the long haul to find that out,” they wrote. They also threatened to file criminal charges against the agents for harrassing them.
“In time, it will come to be part of your conscious awareness that the semantics are material, way too material, actually, but material nonetheless,” the Olenicks continued. “In the law, the semantics have always mattered, but there used to be a sense of political philosophy in favor of individual rights and liberty, and the semantics these days are being used to achieve the exact opposite end. . . .You are so totally barking up the wrong tree that it’d be humorous if it weren’t so pathetic. . . .We find wholesale incompetence in your entire line of thought, word, and deed, here.” (The entire response is a hoot, and included in the embedded court documents below as Exhibit F.)
In June of 2014, the FCC formalized the NAL as a Forfeiture Order. It noted that the Olenicks owned the apartment building from which Texas Liberty Radio transmitted, at which there was “an antenna mounted atop a large tower attached to the apartment building, and cables ran from that antenna into what appeared to be a non-residential room, such as a utility or maintenance room.” It also reasserted that the jurisdiction of the agency to enforce the broadcast-license requirement was settled law, and thus dismissed their challenge.
The Olenicks responded by the end of the month with a letter addressed to Commissioner Mignon Clyburn, who at the time was acting FCC Chair. “You. . .presume facts that are not facts and that are not agreed to,” they wrote. “Your legal conclusions are, therefore, quite errant.” The FCC dismissed their claims in August and demanded the fine be paid.
In September of 2014, the Olenicks responded again claiming to “not ever recall submitting any ‘Petition for Reconsideration.’ To do so might be to agree that there’s something at all competent about your bogus activity regarding us, whether substantive or procedural,” they wrote. “You. . .are still trying to run a bluff. You’re presuming facts into existence that are not facts and that are not agreed to.”
On November 21, 2014, the FCC Office of General Counsel responded to the Olenicks, reminding them that they still needed to pay up, and if they did not “within 30 days of the date of this letter, the matter will be referred to the Department of Justice for Enforcement.” Five days later, the Olenicks wrote back: “Your people have sent bogus demand letters, and we’ve responded to each of them, disputing the claims throughout. . . .Obviously, we’ll be sending no check to anyone in response to your continued mail fraud conspiracy. . . .If you carry out your threat, be sure your malpractice insurance is paid.”
There’s a long and storied history of challenges to FCC authority from those who either subscribe to or sympathize with “sovereign citizen” arguments. The first case of this kind in a pirate context took place in 1934, when a Houston-based unlicensed station challenged FCC licensing authority because its signal did not cross state lines. The Southern District of Texas found that while it was true that the “Voice of Labor” couldn’t be heard outside the state, its existence might cause interference to other licensed stations broadcasting into Texas, and thus fell under FCC jurisdiction.
The microradio movement of the 1980s to early 2000s also featured figures who made similar claims. Lonnie Kobres, who ran a station in Florida much like Texas Liberty Radio from a programming standpoint, was raided in 1997 for his troubles, and the FCC never backed down from his jurisdictional assaults. A radio pirate in Leander, Texas also asserted the jurisdictional defense in 1997 but was denied.
Mark Rabenold, the owner/operator of “North Valley Radio” in Oroville, Washington, eventually faced contempt of court charges for disputing the FCC’s activity in a manner nearly identical to the Olenicks; he was sentenced to six months in jail by a federal District Court judge, and served two months before he agreed to cease broadcasting. And the proprietor of KIND Radio, an unlicensed micropower FM station in San Marcos, Texas, tried a similar line of resistance in 1999, only to have his $11,000 fine upheld.
Finally, there was the case of Steve Anderson, an “officer” in the “Kentucky State Militia,” who was contacted by the FCC in 2000 for running a pirate shortwave station providing “sovereign citizen”-type programming. Anderson exacerbated his legal troubles when he shot at a sheriff’s deputy during a traffic-stop in 2001; after nearly a year on the run from the law, Anderson was arrested in 2002 and criminally convicted on multiple charges, though his FCC problems were not among them and the agency seemed to have abandoned his case once he’d been sentenced.
Despite the familiar (and unfounded) legal ground of the Olneicks’ case, two questions remain: why, exactly, has the FCC sued to collect this particular fine? This is not standard practice in the agency’s enforcement protocol, as it involves extra work on behalf of FCC and DoJ attorneys, and it’s unclear whether or not any cases pursued in this regard have actually compelled the collection of assessed forfeitures.
The second question is: why now? Nearly four years have passed since the agency’s last correspondence with the Olenicks, and it’s far from clear what triggered the FCC’s escalation to a civil suit. I’m guessing it has something to do with Alex Jones, as Liberty Radio carried his program and Jones himself has been in the headlines lately for being “de-platformed” by many online media outlets such as Facebook, YouTube, iTunes, Spotify, and Stitcher.
In this context, the FCC appears to be piling on, perhaps to generate a positive headline or two to counteract some recent bad press in other contexts, though Enforcement Bureau chief Rosemary Harold has been adamant in other contexts that the agency’s enforcement activities have nothing to do with the content aired by any given broadcast station, licensed or otherwise.
It may be in for further hassles: the Oleniks are litigious people, having sued the city of Austin when it attempted to enforce building code violations at its property in 2015. (The suit was eventually dropped.) But does this portend a structural change in the agency’s enforcement protocol against unlicensed broadcasting?
At present, I would have to say not likely: the agency has historically thrown the book at radio pirates who assert legal defenses challenging its jurisdiction to punish them, particularly if they identify as “sovereign citizens,” and I think the same rationale is at play here. But it’ll be interesting to see if more civil suits are filed to compel collection of FCC penalties, and whether the tactic will ever be applied to unlicensed broadcasters who don’t attempt such an affirmative defense. If this is the agency’s way of “sending a messange,” then history seems to suggest that it’s a message in defense of the concept of a federal government more than anything else.FCC vs. Texas Liberty Radio - 8/10/18