Court strikes down character provision in low-power radio case

From the Spring 2002 issue of The News Media & The Law, page 21.

The U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) on Feb. 8 found unconstitutional a federal law that barred all persons who had once engaged in the operation of an unlicensed radio station from acquiring low power FM licenses under newer, more relaxed licensing rules adopted by the Federal Communications Commission.

In its decision, a three-judge panel characterized the character qualification provision in the Radio Broadcasting Preservation Act of 2000 as a “draconian sanction for broadcast piracy.” The court wrote that it found no reason “why a more limited restriction would not achieve Congress’s objective.”

Congress passed the Radio Broadcasting Preservation Act in December 2000, less than a year after a more lenient rule was adopted by the FCC.

In January 2000, the FCC agreed to change its policy and grant low-power licenses to allow non-commercial stations to operate between 10 and 100 watts of power.

Greg Ruggiero, who started the unlicensed microradio station Steal This Radio in 1995, asked the court to review the character provision of the law after a South Carolina station 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.

The member-supported Steal This Radio was run from an apartment building in New York City by using plumbing pipes as an antenna. The station, which reported local news and played music, was shut down in 1999 after a court battle that went to the U.S. Court of Appeals in New York (2nd Cir.).

The government has asked for a rehearing before the entire appeals court.

“We still have a ways to go,” said Robert Perry, Ruggiero’s attorney. — KC