COURT PROHIBITS UNIVERSAL BAN ON RADIO PIRATES
Congress and FCC can’t ban all former pirate radio operators from holding low-power FM (LPFM) licenses, U.S. Appeals Court, D.C., said in decision Fri., but Commission can make decisions on character qualifications of individual LPFM applicants. Court, in 2-1 decision, called overall ban on former pirates “unique and draconian sanction.” In separate decision same day, court said FCC didn’t have to consider constitutionality of earlier LPFM ban in each enforcement proceeding against pirates.
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Ban on licensing former pirates included in Radio Bcstg. Preservation Act of 2000 isn’t supported by congressional record, and neither Congress nor FCC adequately explained while more limited restriction wouldn’t meet congressional goal of discouraging pirates, said Judge David Tatel, who wrote both decisions. Under provisions, pirate “can never lawfully operate a low-power station anywhere in the country,” he said, while “civil wrongdoers, felons and even inveterate regulatory violators other than pirates” have opportunity to convince FCC they can follow rules in future. Opinion said ban also was “poorly aimed” because it affected pirates who violated rules only briefly, didn’t know about rules, or otherwise had shown inability to follow rules.
There’s also “ready availability” of more targeted alternative to meet congressional goal of deterring licensing of people likely to break rules in future, court said. It said FCC could use waiver process to select those less likely to violate rules. Court also cited argument by self- acknowledged pirate Greg Ruggiero that there was evidence Congress actually was targeting content of many pirates’ messages. Despite that, decision “does not leave Congress and the Commission to bar some past pirates,” court said, since “the Commission already has authority under its general character qualification provision to deny licenses to individual pirates.”
Judge Karen Henderson dissented from decision (Judge Judith Rogers joined with Tatel), saying it was “reasonable or logical” to assume previous violators of rules would do so again. She also disagreed that Congress was targeting content of pirates’ speech, saying identities of most pirates “are many and unidentified,” so Congress couldn’t target specific message.
In 2nd case, Tatel said it “would be absurdly inefficient” for FCC to reconsider constitutionality of earlier ban on low-power broadcasting in each enforcement case since Commission had evaluated public interest in rulemaking setting rules. Case involves Jerry Szoka, who operated unlicensed Grid Radio in Cleveland 1995-2000 and claimed ban was unconstitutional.