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Law firm asks Supreme Court to consider First Amendment issues in radio raids

By Phillip Taylor
Special to
The Freedom Forum Online

12.06.00

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All Roy Neset wanted to do was listen to talk radio while he plowed his fields.

But the only station in Tioga, a remote farming community tucked into the northwest reaches of North Dakota, was an AM station that played country music from dawn to dusk.

So Neset bought a low-power radio transmitter, obtained permission from a Colorado station to transmit its programming via satellite and piped talk radio to his farm and to a handful of neighbors.

But Neset soon found himself in court after the manager of the AM station complained to the Federal Communications Commission. The agency seized Neset's equipment, sued the farmer and succeeded in knocking his tiny station off the air.

Neset's attorneys say in hearing his case, neither the federal court judge nor a three-judge panel of the 8th U.S. Circuit Court of Appeals, which ruled last week, considered Neset's First Amendment pleas.

"The decision defies the law and common sense," said Scott Bullock, senior attorney for the Institute for Justice. "If the government sues you in court, you should be able to defend yourself by raising First Amendment arguments."

Bullock's firm, a public-interest group in Washington, D.C. ,that defends clients with constitutional grievances, discovered similar problems 600 miles away in the more urban setting of Minneapolis. There, Alan Fried of Beat Radio lost his radio equipment in a Nov. 1, 1996, raid on his unlicensed 20-watt station.

As in Neset's case, the court refused to hear Fried's free-speech claims in his attempt to retrieve his equipment.

While the First Amendment issue in Fried's situation has weaved its way through the court system, the case itself remains in district court. Recently, it petitioned the U.S. Supreme Court to determine if low-power broadcasters are entitled to raise free speech as a defense in an equipment forfeiture case.

Bullock said the issue is in flux. While the 8th Circuit has dismissed free-speech arguments in radio-raid cases, the 6th Circuit in U.S. v. Maquina Musical earlier this year said it was unlikely that Congress intended to deprive defendants in such cases of their ability to raise constitutional defenses to those actions.

David Fiske, a spokesman for the FCC, wouldn't comment on any of the radio cases specifically. But he says the Supreme Court has a long history of decisions saying the commission's power to issue broadcasting licenses falls within the scope of the First Amendment.

As for the seizure issue, Fiske compared taking radio equipment from an illegal broadcaster to taking a car from a drug trafficker.

"The drug dealer doesn't get the car back," he said. "And neither does the reckless broadcaster get the transmitter back."

Dennis Wharton, spokesman for the National Association of Broadcasters, said he wasn't familiar with the cases but said the FCC must have power to maintain the integrity of a limited broadcast spectrum.

The NAB, the broadcasting industry's largest lobbying group, opposes low-power radio, claiming small-wattage stations interfere with its larger cousins. The group has filed suit against an FCC licensing plan adopted last January that would place transmitters of 100-watts or less into the hands of community groups, churches, schools and nonprofit associations.

Both Neset's and Fried's cases are unusual because neither station faced accusations of interference. Neset's signal covered only a few miles, essentially the breadth of his farm. Fried's station camped out on 97.7 FM, a legitimate channel the FCC had carved out for a previous, but short-lived, radio station.

In a telephone interview, Fried said he started Beat Radio because there wasn't a dance music station in the area. When the FCC sent a letter in August 1996 ordering that the broadcasts be stopped, Fried filed for a waiver from the licensing requirement since the agency didn't offer licenses for low-power stations at the time.

Fried said he never heard from the FCC about the waiver, but did seize his equipment two months later. He's been trying to get it back ever since, he said.

In the meantime, Fried has taken Beat Radio to various other stations, all licensed, allowing him to air his programming over a community station, nationwide through the now-defunct Children's Broadcasting Corp. and on a variety of FM and AM stations.

But Fried says he's concerned that his brief history as an unlicensed broadcaster might prevent him from qualifying under the new licensing scheme, which forbids licenses to those who ignored the FCC or who broadcast illegally after Feb. 26, 1999.

"A piece of paper doesn't make you a responsible broadcaster," he said. "A lot of people have driver's licenses, but I bet a lot of us have a driving offense or two."

Fried says he's offended when large broadcasters call unlicensed ones "pirates." Unlicensed broadcasters, he says, are only exercising their First Amendment right to freedom of speech. He says the real scourges of the airwaves are the huge corporations that gobble up radio stations.

"If we're talking about piracy," he said, "I'll point the finger."

In the meantime, Fried says he hopes he may someday retrieve his equipment.

"I hope the FCC has been giving it three square meals in the pokey," he said with a laugh.

Bullock says he's hopeful the Supreme Court will take up Fried's case because the court history and law surrounding micropower radio and whether defendants can raise constitutional claims in forfeiture cases are unsettled.

"There is a split right now among the circuit courts on this particular question," he said. "With a number of cases percolating, perhaps the Supreme Court might think this is an appropriate time to step in and resolve this issue."

Related

Godfather of low-power radio back on air despite shutdown
Mbanna Kantako's Human Rights Radio had broadcast for nearly 13 years before the FCC seized station's equipment.  11.16.00

Low-power radio's friends, foes argue against FCC plan
Broadcast industry tells federal appeals panel that adding new FM stations would cause interference with existing channels; radio pirates question eligibility requirements.  11.29.00

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