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4/10/98

RM-9208 PETITIONERS ASK FCC FOR SUSPENSION OF PROSECUTIONS

by Don Schellhardt

The RM-9208 Petitioners (Nick Leggett, Judith Leggett and Don Schellhardt) ask the Federal Communications Commission for a suspension of microbroadcasting prosecutions.

EXCERPTS FROM THE LEGGETT/SCHELLHARDT SPECIAL COMMENTS

We ask the Commission to take the following steps:

1. Suspend all ongoing microbroadcasting prosecutions until such time as the Commission has: (a) adopted a final rule which legalizes some or all microbroadcasting stations; OR (b) decided and announced that it will not legalize any such stations.

In other words, all ongoing prosecutions would be suspended while the Commission's current reconsideration of its microbroadcasting policy is in progress.

2. If the Commission does decide to legalize some or all microbroadcasting stations, grant amnesty to those charged with violation(s) of the currently applicable regulations. Charges against current Defendants would be DROPPED
-- not just suspended -- and previously imposed penalties, against previously convicted Defendants, would be lifted.

A suspension of prosecution would be in the interests of the Commission, the broadcasting industries AND the nation as a whole.

(a) The requested suspension of prosecution would be in the FCC's interest.

(I) It would improve the Commission's credibility by demonstrating a sense of fairness AND flexibility. After all, how does it look to the public when people are fined -- or even JAILED -- for violating regulations that even the Commission has implicitly acknowledged as a possible mistake?

(II) The prosecution suspension would free up staff resources, at a currently under-staffed Commission, for other enforcement priorities. It would also be a good way to begin the transition to post-legalization regulation, when enforcement personnel will be focused on making sure that microbroadcasting stations follow the rules -- rather than trying, unsuccessfully, to make sure they don't exist.

(III) If the FCC deals in a reasonable manner with violators of current regulations, it will have more credibility -- and probably more active support -- within the post-legalization microbroadcasting industry. This added credibility and support could be a vital asset in identifying and restraining those who CONTINUE to violate Commission regulations even AFTER they have been given the option of operating legally.

The Commission is required, by its governing statute, to concern itself with the GENERAL health of the broadcasting industries and the GENERAL health of the U.S.A. ("the national interest").

From this broader perspective, there are additional reasons why the FCC should initiate a suspension of microbroadcasting prosecutions.

(IV) The prevailing concept of justice, in the Western industrialized world, demands that people not be fined and/or jailed for violating regulations that are later found to be a mistake.

(V) The current situation is not unlike a stalemate in a protracted war. On one side of the barricades, the FCC -- after much effort -- has "taken prisoners" (literally), and has closed down many microbroadcasting stations, but has not been able to wipe out the microbroadcasting industry as a whole. On the other side of the barricades, the microbroadcasters -- after much effort -- seem to have achieved survival for their industry but are still very much at risk as individuals.

So .... both sides can claim victories but neither side has achieved all that it wants. Historically, this is often the point at which rival forces conclude that peace just might be better than war.

And peace often -- not always, but often -- begins with peace negotiations, which often begin with "gestures of good faith", which often include a ceasefire. There are exceptions, notably the Korean War and the Vietnam War, but ceasefires -- as a backdrop for peace negotiations -- are more common than not.

A suspension of prosecution, at this time, would be a POWERFUL "gesture of good faith". It would greatly facilitate constructive dialogues between the Commission and microbroadcasters. In turn, such constructive dialogues would
greatly increase the prospects for new policies that will WORK -- because each "side" will better understand what motivates the other -- and each "side" will better understand what the other has to have.

(VI) The microbroadcasting "crimes" at issue here merit special flexibility because they are "political crimes". We DEFINE "political crimes" as "non-violent but unlawful actions motivated by the desire to improve society, and/or a segment of a society, rather than by the desire to advance self-interest at the expense of others".

Historically, Americans have been relatively tolerant of "political crimes" -- although this tolerance has often displayed itself after the fact. Many American movements and institutions which went to became established and respected -- labor unions, abolitionism, civil rights, Vietnam war protests -- began with the commission of "political crimes". Such crimes, in the service of a good cause, or what the perpetrator(s) at least regarded as a good cause, have been excused or even admired in a way that non-political crimes (such as theft and murder) have not ....

.... American history further shows that it is in the interest of the government, and the REST of the established order, to regard as a serious warning sign the commission of political crimes by otherwise law-abiding citizens. When government was (ultimately) responsive and flexible in dealing with such citizens during the Vietnam war, the civil rights movement and the birth of American labor, the pressure and the protests faded -- and a semblance of "domestic tranquility" returned.

But very important lessons can be learned from the two major occasions when the established government was NOT flexible -- at all.

When the British government shot otherwise law-abiding colonists for initiating peaceful but illegal protests of a tax on tea, their otherwise law-abiding fellow colonists burst into rebellion and eventually into full-fledged revolution. In the end, the British brought upon themselves not merely an end to tea tax revenues -- but an end to the British presence throughout the entire United States.

And when the governments of most Southern states proved inflexible on the issue of slavery, and indeed started to "export" slavery into frontier territories, and then successfully pressured the Federal Government into arresting otherwise law-abiding Northerners for aiding fugitive slaves, the fuse was lit on a powder keg that eventually exploded into a civil war. In the end, the backlash swept away not merely the institution of Southern slavery but the entirety of the established political and economic order in the South.

Americans generally "cultivate their own gardens" and LOVE "domestic tranquility". For these reasons, and others, the American sense of obedience to a "higher law" rarely breaks the surface of American life. But the sense of a higher law, by which lesser laws may be judged, is indeed present in the American soul -- and, when it does surface, it is powerful enough to ripple across the political and economic landscape, leaving even long-established institutions crumbling in its wake.

This sense of a higher law is a sleeping giant. Those who awaken it do so at their peril.

Will the American people rise up in arms to defend unlicensed microbroadcasting? Of course not. But they might, at some point in the foreseeable future, rise up in arms over the smoldering issue to which microbroadcasting is ATTACHED: the widespread perception -- in our view, the FACT -- that our representative democracy has become, in significant measure, an UN-representative democracy.

Remember that the American Revolution was not fought over a tax on tea -- but it was a tax on tea that put a spark to the tinder."