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Feature: Telling it to the Judge

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7/3/01

Regional Battles, National Goal

While the June 2001 court victory for Connecticut's Prayze FM was an important event in the ongoing legal battle between pirate broadcasters and the Federal Communications Commission, it is only one front in a broader challenge to FCC authority currently taking place in the courts.

The Prayze case deserves special mention because of its fundamental attacks on both the FCC's new low power FM (LPFM) licensing rules and on the general enforcement strategy the agency employs against the free radio movement. It is not the first station to attempt draw governmental blood in the courts, nor is it the only one finding success.

There are at least a half-dozen court cases wending their way through the federal judicial system at the moment. It is important to remember that there are basically three levels of activity in the federal court system: the District Court (where all cases begin), the Appeals Court (who can either uphold, reverse, or remand District Court judge rulings), and the Supreme Court (the ultimate arbiter of chosen disputes).

Microradio cases can bounce back and forth between the levels but none have ended up in front of the Supreme Court yet.

Along with Prayze FM's lawsuit, there are two other pirate radio-related court cases worth mentioning, both for their status and their strategies.

Micro Kind/Canyon Lake Radio v. FCC

Another in the handful of microradio court cases which involve pirates taking the initiative and suing the FCC first, the plaintiffs in the Micro Kind Radio case had a judicial notch on their belts going in: they knew what it was like to win at the U.S. Supreme Court, having been involved in a case surrounding the right to distribute a free weekly newspaper on a university campus. Going after the FCC was almost natural for them.

Kind had been on the air since 1997, and they'd helped Canyon Lake Radio out before, when that station got its equipment confiscated by the FCC. Both stations ended up suing the agency and their cases were consolidated in 1999. In late 2000, the plaintiffs met in before a federal judge in Texas to lay out a timetable for their case.

The judge was unusually sympathetic to the arguments raised by the pirates, which attacked the FCC's role as manager of spectrum, its enforcement policies, and the anti-pirate nature of the newly-minted LPFM rules. The judge called the plaintiffs "Modern Day Thomas Paines" and thought their lawsuit had history-making potential.

Although the first skirmish looked promising, a timetable for trial has yet to be set; the lawsuit's been put on hold while the FCC gets its first batch of LPFM applications from Texas sorted out.

However, the delay has given both stations a partial reprieve: they each filed LPFM applications and may receive exemption from the "anti-pirate" clause in the rules. If that happens, it could set the precedent for rendering the LPFM ban on "pirates" null and void.

Regardless of the outcome with licensing, Micro Kind and Canyon Lake Radio's lawsuits should move forward sometime in the second half of 2001.

Beat Radio v. FCC

This case began in 1996 when Alan Freed started up Beat Radio, an unlicensed dance music station in Minneapolis, Minnesota. In less than a year, the FCC raided Beat Radio and initiated a civil suit against the station.

Freed wasn't one to back down from the attack and fought back in court. His primary defense was that since the FCC didn't have a way for him to apply for a license (LPFM didn't exist yet) the government was illegally restricting his right to free speech.

Beat Radio lost the first round in federal District Court when the judge ruled Freed couldn't challenge the validity of FCC rulings at the District Court level - that level of defense was more properly handled by Appeals Court judges.

The ruling essentially meant all micro broadcasters who challenge the FCC in court must automatically forfeit the first round of the battle. Such a stacking of the deck, Freed argued, was a further restriction on his Constitutional rights to due process and a fair trial. Beat Radio appealed the judge's decision to the Eighth Circuit Court of Appeals.

In March 2000 the appeals court ruled in Freed's favor. But the FCC asked and receiver a rehearing of the case and the panel reversed its decision less than four months later.

Beat Radio has since appealed to the Supreme Court - becoming the first microradio case in history to make it to that level. While the specifics of the argument the Supreme Court is being asked to consider do not strike at the fundamental rules and regulations surrounding unlicensed broadcasting, the merits of the case certainly have the potential to.

These examples are just the bright spots in a flurry of legal activity happening across the country. Pirates are jousting with the FCC in the court as well as in the streets and on the air. Such a multi-pronged strategy overwhelms the system in different ways; it is only a matter of time before one tactic makes a breakthrough.