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8/24/98

There are many that say it's no use to try to change something from the inside.  Maybe it's because they're not sure how.  Once again, legal experts in the microradio movement have a bright idea for tactics - use the FCC's regulatory system as a tool! Written by Peter Franck, a member of the legal team defending Stephen Dunifer and Free Radio Berkeley.

This is a report, a proposal, and poses questions to the micro community. Please share this with groups that are not on line.

In the Dunifer case, Dunifer's primary defense against the U. S. government's request for a court injunction to stop him from broadcasting was that FCC Regulations barring low-power stations from getting a license were unconstitutional.  The Court ruled that Dunifer did not have "standing" to raise this defense because he had not applied and asked for a waiver of the licensing provisions. In other words, the Court refused to consider the constitutionality of the regulations because Dunifer had not asked the FCC to waive those requirements which seem to make it impossible for a low-power broadcaster to get a license to broadcast lawfully. (The same Judge, early in the case, had expressed great doubt about the constitutionality of the FCC regulations.  In this ruling she was refusing to consider the issue.)  While we think the Judge's reasoning is terribly wrong, the fact is that the FCC has been filing this Judge's decision in other Courts around the country with some success.

We, the Bay Area members of the NLG's Committee on Democratic Communications, have been meeting to consider what the best response may be. It is important that lawyers for micro-broadcasters should be able to raise the First Amendment defense if the government goes after their clients (whether by way of injunction, request for an order to seize equipment, or otherwise). We know that the FCC has been desperate to avoid having any federal court actually consider the constitutionality of their regulations. They know that if any half-way fair-minded judge actually evaluates the ban on low power radio, it will be ruled unconstitutional and the FCC regulations will fall. So the question is how we can be sure that there is "standing" to raise the constitutional defense in future cases.

We have also been thinking about the pending Rulemaking (in which the FCC is considering whether to authorize some form of low-power radio).   We feel it is important to have a large number of good test cases in the "pipeline."  If the FCC is seriously worried about losing in court, they are much more likely to do something halfway acceptable in the rulemaking.  So, having a number of cases pending where a waiver has been requested, and the court would be forced, under the Dunifer ruling, to deal with the constitutional issues will put maximum pressure on the Commission to institute fair and equitable system for low-power FM.

We have also talked with a number of groups who feel that they are in a better position to organize support for their stations among their communities if they are not in a complete outlaw"" posture.  (Some feel that the very opposite is true, and everyone should be at choice on this.)  Groups that used to be able to say that they felt that what they were doing was legal, and that the issue was in the courts, were able to point to the fact that the Dunifer court had refused, for several years, to grant the government an injunction against Dunifer.  Lawyers for stations seeking to head off seizures were able to write to the Federal judges in their district and request a hearing before any seizure warrant was issued, pointing to the pendancy of the Dunifer case. People have told us that they will be in a better position to organize support in the community if they can say that, following the Dunifer case, they have applied to the FCC for a waiver of its onerous licensing provisions.

For all these reasons we have been working on ways to make it practical to apply for a waiver, and to comply with enough of the FCC's requirements so that their application will be filed and considered.  The application form is available on the FCC's web page ("Application for Construction Permit"), but it is couched in a fair amount of legalese.

To make it possible and practical for groups who want to apply for a waiver, we are preparing a sample FCC license application form and filling it out as most broadcast groups would, with explanations for those questions which you must answer specifically as they relate to those groups.  If you would like to look at the present draft of the form it can be emailed to you as an attachment in Word 6 or 97 format. We will post it to the web shortly.

FCC Regulations require an Engineering Study. Speaking technically, this means filling out Section V-(b), "FM Broadcast Engineering Data" of the Application Form. This is difficult to do if you are not a broadcast engineer and in any case it requires a computerized engineering study of the signals of other stations in your area. We have consulted with a broadcast engineer who could prepare such studies at a reduced rate of $1,000 to $1,500 (normally this kind of thing can cost several times that).

We have talked with another very sympathetic and experienced consultant who is willing to train a few people in the micro community so that they can help stations fill out the form and so that they (the volunteers) can do the engineering study.  That would depend on arranging for dial-in access to a computer which has the engineering program and database on it.   If enough groups are interested in following this path we can arrange such access.  The training would be done in several long telephone sessions.

(Some people feel that it is appropriate for groups to file the application only, and simply ask the Commission to waive its requirements of an engineering study.  We don't know how the Commission would react to that, but it may make the court case weaker.)

We estimate that if we have a few trained volunteers willing to spend the time, the waiver applications could be prepared for an out of pocket cost to the stations of  $200 to $300. Even this may be too much for some, and we may want to think about a pooling arrangement (better off stations paying a bit more to support the out of pocket costs of the ones who could not afford it otherwise).

SO, WE NEED TO KNOW: First if there are stations or groups that want to follow this path; Second, if there are some activists willing to be trained to review the applications and do the engineering study, and once trained to commit some volunteer time (or charge a small fee?) to helping stations prepare their waiver applications.

TO SUMMARIZE, please let us know as soon as possible if you want to apply to the FCC for a Waiver of some of their Regulations . . . specifically those relating to low power, the scope of engineering studies, protection of certain adjacent channels, and some of the information requested on their form.

We feel that groups that fully complete the FCC's forms (which are admittedly an obstacle course) will be in a stronger position to defend themselves against government attempts to seize their equipment, to enjoin them from broadcasting, or against fines. We also think that if a number of these applications are on file it will increase the possibility that the FCC will act more favorably in the rulemaking process.

Peter Franck

National Lawyers Guild Committee on Democratic Communications