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Court vacates sweeping character provision in low-power radio case

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  1. Content Restrictions

    NMU         D.C. CIRCUIT         Broadcasting         Feb 19, 2002    

Court vacates sweeping character provision in low-power radio case

  • A U.S. court of appeals found unconstitutional a law that barred all persons who had engaged in the operation of an unlicensed radio station from acquiring low-power FM licenses.

A federal law that prohibited any individual who had ever operated an unlicensed radio station from securing a low-power FM license or helping with the operation of a legitimate low-power station was ruled unconstitutional by a federal appellate court on Feb. 8.

The U.S. Court of Appeals in Washington, D.C., (D.C. Cir.) called the character qualification provision in the Radio Broadcasting Preservation Act of 2000 a “draconian sanction for broadcast piracy.” The court said it found no reason “why a more limited restriction would not achieve Congress’s objective.”

Congress passed the Radio Broadcasting Preservation Act less than a year after a more lenient rule was adopted by the Federal Communications Commission.. The FCC had changed its policy and agreed in January 2000 to grant low-power licenses to allow non-commercial stations to operate between 10 and 100 watts of power.

Greg Ruggiero, a former unlicensed microradio operator, asked the court to review the provision in the law after a South Carolina station which was applying for a low-power license offered him a position on its board. Under the Radio Broadcasting Preservation Act, Ruggiero would have been ineligible for the job because of his past association with an unlicensed station.

Ruggiero started Steal This Radio in 1995, broadcasting out of an apartment building in New York City by using plumbing pipes as antennas. The entirely member-supported station reported on local news and housing issues as well as playing music. After a court battle that went to the U.S. Court of Appeals in New York (2nd Cir.), the station was shut down in 1999.

Robert Perry, an attorney with the Center for Constitutional Rights who represented Ruggiero, said he was “ecstatic” with the current decision, although he “would have preferred that the court direct the FCC to apply a case-by-case analysis to the question of applicants based on their character.”

As the ruling stands, the FCC retains authority to determine whether an applicant is a suitable candidate for a low-power license and may take into account prior affiliations with stations that once operated illegally.

“The fact that they ignored FCC rules is still a relevant character qualification,” said FCC spokesman David Fisk. The court’s ruling “takes you really to the status quo.”

Fisk said he wasn’t sure if the FCC would appeal. The government has 45 days to seek a rehearing or 90 days to ask the U.S. Supreme Court to take the case.

Getting a rehearing is difficult, Perry said, adding that this case “may be the end of the line.”

(Ruggiero v. FCC) KC

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