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Feature: LPFM in Court

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6/19/01

Prayze FM vs. FCC

Prayze FM has never sought publicity for its fight, preferring to quietly slug it out in court with the FCC over its right to broadcast, license or not.

Since February 1998, Prayze has methodically ground its way through the federal judicial system, winning some small battles and losing some big ones. Until this year.

Now, Prayze is full of hope again, and it holds hope for a forced expansion of the FCC's new LPFM service as a result of its struggle.

Our story begins in November 1996, when Prayze FM began broadcasting commercial gospel and community news with 90 watts of power on 105.3 FM in the Hartford, Connecticut area. The FCC's enforcement agents in Boston found out about the station in December and went out to hear for themselves in March, 1997.

The same month of the field inspection, complaints were filed with the FCC alleging that Prayze was not only causing interference but was "having a negative economic impact on another licensed station."

Over the course of that year the FCC reportedly issued three warnings to Prayze FM before preparing to initiate legal action against the station. But Prayze's founder, Mark Blake, beat the FCC to the draw and filed a lawsuit of his own against the agency in February 1998, alleging the government's prohibition against unlicensed broadcasting was unconstitutional.

A melee of court filings then commenced, with the FCC attempting to get its way and Prayze fending them off at every turn. In November 1998, Prayze FM applied for an experimental broadcast license. Discussions on a formal LPFM service were just beginning at the FCC, and Prayze hoped it could get on the air as a "test case" for the new class of stations to come.

The FCC was granted a preliminary injunction forcing Prayze off the air in mid-1999 and subsequently denied the station's license request.

The station appealed the injunction, received a small reprieve, and was able to resume broadcasting for a short spell. But after bouncing back and forth between the District Federal Court in Connecticut and the 2nd Circuit Court of Appeals, the FCC got the preliminary injunction to stick in June 2000.

The news did not look good for Prayze FM. Fortunately, Congress stepped in and opened up another can of worms.

LPFM Provides New Ammo

While Prayze's case was on appeal the FCC approved a new low power FM (LPFM) service. The original version of the LPFM rules established a waiver process for those who'd run afoul of the FCC for previous unlicensed broadcast activity.

Blake filed an application for an LPFM license in August 2000 under the name of Good News Broadcasting and requested a waiver based on his background with Prayze FM.

But before the FCC was able to act on the application Congress passed the Radio Broadcasting Preservation Act, completely barring former and current "pirates" from the new LPFM service. Because Congress modified the rules, the FCC had to dismiss Blake's second license request.

This year, as the FCC filed for a final summary judgment from the District Court to silence Prayze FM once and for all, Prayze amended its original lawsuit with a new complaint.

The contention was a classic Catch-22: Prayze FM had tried to negotiate the uncertain waters of broadcast regulation before LPFM existed and got punished for the attempt. Now, the FCC had legalized the very type of station Prayze was trying to run - but Congress had forced unlicensed broadcasters out of the game before they even had a chance to play. Either way you sliced it, Prayze was stuck.

Craig Perra, a longtime lawyer on the Prayze case with the Hartford firm of Updike, Kelly & Spellacy, also worked on the revised lawsuit. Key to the effort are two Constitutional questions dealing with the First and Fourteenth Amendments.

The First Amendment question stems from the specific anti-pirate language of the Broadcasting Preservation Act. Perra says because previous unlicensed broadcasters are automatically excluded from participation in the LPFM service, the government unlawfully curtailed Prayze's freedom of expression.

"Prayze FM was no different than a protester back in the '60s speaking on issues that they believed were protected by the Constitution," Perra explains. "And our Supreme Court has said that when you believe you have a right, you're allowed to exercise that right with impunity, and the government cannot prevent you from doing so. Can't restrain you prior to the exercise of that right."

In essence, just because Prayze was on the air before the FCC legalized LPFM doesn't give the FCC the right to arbitrarily cancel the station's opportunity for a license.

"Because Prayze FM was an unlicensed broadcaster, these new rules essentially punish Prayze FM for vindicating what it felt was a good-faith, honest Constitutional right," notes Perra.

The Fourteenth Amendment argument is even more compelling. Here, Prayze alleges that being banned from LPFM violates the station founder's due process under the law: the FCC's creation of the LPFM service is tantamount to an admission that the government had no rules in place to deal with low power radio license requests in the past.

Even though the FCC still allows LPFM applicants to apply for waivers in some circumstances where a new station might not otherwise be allowed, Congress' modification of the law leaves no recourse for the unlicensed broadcaster.

"The process, as we know it, is non existent," says Perra. "There's no waiver form, there's no applications, there's no procedure for a waiver, they've never granted a waiver, there's no case law or administrative law governing waivers - they just don't exist."

Green Light to the Next Level

The first court decision handed down on Prayze FM's revised lawsuit came on June 6, 2001, from Senior District Court Judge Warren Eginton. It signals a real shot across the bow to the FCC and its LPFM plan.

Judge Eginton agreed that Prayze's new arguments have substance and should be explored. He also denied the FCC's motion to have Prayze FM silenced for good.

In his eleven-page decision, Eginton wrote, "This Court agrees with Prayze's assertions...and finds that the [Radio Broadcasting Preservation] Act expressly excludes Prayze FM or its progeny from obtaining a low power FM license."

"If the FCC issued a license to Good News," Eginton continued, "based on the application by Mark Blake, it would be in violation of the Radio Broadcasting Preservation Act of 2000. This court finds futility, and consequently finds standing on the as-applied challenge."

Because the rules at the foundation of Prayze's case have changed twice since the inception of Prayze's suit, Eginton concluded that "there are genuine issues of material fact in dispute." Not only does that mean Prayze can further challenge the legality of the LPFM regulations, but that "The [FCC's] motion for summary judgment will be denied."

In connection with the New York-based Center for Constitutional Rights, who are also working the Prayze case, Perra says the next step is to set up a conference with FCC lawyers to begin "discovery and preparation for trial."

If the case gets that far, not only will the FCC be forced to defend its restrictive LPFM regulations in court, but it'll also have to offer unprecedented access to its files on the issue of unlicensed broadcasting.

If the FCC ultimately loses, it may be forced by the courts to modify its LPFM proposal and open up the spectrum to more potential licensees, regardless of the background of the applicants. Such an event would truly be a watershed for the microradio movement in America.

For now, the legal focus is still on the small goal, with noted optimism for the big implications of a favorable decision.

"We've certainly been energized by the movement and captivated by the movement, but our objective is very narrow," asserts Perra. "Our objective is to get Prayze FM back on the air serving the community of Hartford with its religious messages and with its community messages."