A short story reports that J. Garvan Murtha, the federal judge overseeing the FCC’s original case against the station, ruled in the FCC’s favor on March 31. The ruling contains a “John and Mary Doe” clause, which basically calls for a blanket ban on any unlicensed broadcasting within the community of Brattleboro.
Unfortunately, the story says nothing about the judge’s rationale. It does, however, quote station lawyer James Maxwell as saying that the station’s tactic of mustering community support for an alternate “authority to broadcast” is still valid: “The basic argument that a town gave an entity permission to broadcast still exists. That argument is still useable by other stations.”
I’m guessing Murtha basically applied the historically-consistent smackdown arguments to rfb’s case: that the FCC has exclusive jurisdiction over the airwaves and/or rfb never exhausted its administrative remedies with the FCC before attacking the license rule via direct action. The latter sounds more likely given Maxwell’s assertion.
Never mind the FCC’s violation of the station’s right of due process by seeking a shutdown judgment in one court and getting a raid warrant in another. Had he bigger balls, Judge Murtha would have held the FCC in contempt for subverting his court.
It’s not as if the rfb case broke entirely new ground, except on the tactical front. Murtha simply delayed the inevitable, which was his prerogative, in misguided hopes of facilitating rfb’s assimilation into the licensing regime. The FCC didn’t play ball and had already raided the station, so there wasn’t a lot left for him to decide.
Judge Claudia Wilken, who in 1997 kept Free Radio Berkeley on the air by initially deferring to grant the FCC an injunction against the station, admitted early on that the government would ultimately prevail in its drive to shut the station down on points of law. But Wilken, like Murtha, disagreed in part with the law, which restricts stations like rfb from even existing.
Even cases that are ultimately lost can win enough along their way through the court system to make a difference. Challenges to the FCC’s licensing regime like radio free brattleboro’s lose not because of insufficient merit; procedural and jurisdictional pitfalls befall them. Eventually there will come a case where these evasions of the merits will themselves fail.