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Justices grill attorneys about low-power broadcasting

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    NMU         D.C. CIRCUIT         Broadcasting         Sep 17, 2001    

Justices grill attorneys about low-power broadcasting

  • An embattled station owner and the FCC present their cases to an appellate panel concerning First Amendment protection of unlicensed radio operators.

A three-judge appellate panel directed questions at attorneys in federal court Sept. 13 in its attempt to weigh arguments from an illicit radio broadcaster and the government commission responsible for regulating interference over the airwaves.

Attorneys for the Federal Communications Commission and Jerry Szoka, a Cleveland-based broadcaster, presented their cases to a panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Circuit) to determine if First Amendment protection should extend to Szoka. Szoka operated the low-power Grid Radio in Cleveland for years without a license.

“[Szoka] did not apply for a license because the FCC placed a ban on micro broadcasts,”said Hans Bader, Szoka’s attorney. “But the microbroadcast ban is overbroad.”

Bader said any efforts by Szoka to apply for a license inevitably would have resulted in an FCC refusal. The FCC implemented a policy in 1978 prohibiting low-power stations like Grid Radio from transmitting on the nation’s airwaves.

Nonetheless, an attorney for the FCC — the regulatory agency that oversees broadcast entities — contended that Szoka should have applied to change the FCC’s rules instead of knowingly violating the law by going on the air without a license.

“Fundamentally, this is about self licensing,” said Rodger Citron, the FCC attorney. The agency contends that micro broadcasters such as Szoka threaten to interfere with the broadcasts of legal stations.

Szoka began operating his low-power FM station in 1995, providing music, news and other programming for Cleveland’s gay community. He chose the 96.9 FM frequency because it was not being used in the Cleveland market.

“There was a complaint [against Szoka]” Bader said in court, “but not because of interference. Microbroadcasting can fit into a gap in the electromagnetic frequency that is too narrow for a high-power station.”

After the FCC obtained a cease-and-desist order to prevent Szoka from broadcasting, it modified its ban on low-power broadcasts. In May, the FCC granted the first license to a low-power FM station in more than 20 years. Many stations on the air before the FCC policy change, however, are still prohibited from obtaining a government license.

The arguments heard in federal court follow a July ruling by the U.S. Court of Appeals in Cincinnati (6th Cir.) upholding the FCC mandate to force Szoka off the air. Judges in that case wrote that there were well-founded arguments in support of constitutional protection for the broadcaster, but they could not be argued in the case before the Sixth Circuit. They referred Szoka to the D.C. Circuit to argue for First Amendment protection of his low-power radio broadcasts.

(U.S. v. Szoka; Media counsel: Mark Wallach, Calfee, Halter & Griswold, Cleveland) GR

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