NATIONAL LAWYERS GUILD COMMITTEE ON DEMOCRATIC COMMUNICATIONS 100 Sansome Street, Suite 900 San Francisco, California 94104 Telephone: (415) 705-6464 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM LEIGH DOUGAN, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondent ____________________ _________ ) ) ) ) ) ) ) ) ) ) ) No. 92-70734 NAL/Acct. No. 215DS0007 ) UNITED STATES OF AMERICA, ) No. 93-55433 ) Plaintiff-Appellee, ) NAL/Acct. No. CV-91-06431-RG v. ) ) TOM REVEILLE, ) ) Defendant-Appellant. ) _______________________________) INTRODUCTION The National Lawyers Guild's Committee on Democratic Communications contends that Federal Communications Commission (F.C.C.) policies with regard to micro radio broadcasting have failed to keep pace with the rapid proliferation of technological advances in the field of communication. The F.C.C.'s current regulatory scheme completely prohibits micro radio broadcasters and their listeners from accessing the public airwaves. To enforce this absolute prohibition, the F.C.C. relies upon regulations, and case law applying the regulations, which were intended solely for application to large-scale, commercial broadcasters, and which were promulgated long before the advent of the technology that makes possible micro radio; indeed, even before the advent of FM broadcasting. As a result, the F.C.C.'s application of these regulations violates the First Amendment rights of individuals seeking to exercise those rights via methods and mediums that were technologically impossible when the regulations were created. The cost of owning and operating a radio station has skyrocketed into the hundreds of thousands and even million dollar range, and participation in the broadcast media has thereby become limited only to large corporations. The individual seeking to communicate and listen to others over the airwaves in his or her local community is completely left out of the licensing scheme if he or she cannot afford the expenses entailed in purchasing, obtaining a license for and operating a commercial broadcast station with at least 100 watts of power. The National Lawyers Guild Committee on Democratic Communications recognizes micro radio as a method by which ordinary people can communicate with one another over the airwaves without interfering with the rights of large-scale, F.C.C. licensed commercial stations or their listeners. The F.C.C., however, has not provided a means by which persons wishing to avail themselves of this new technological opportunity can legally do so. The problem is not that micro radio broadcasters are refusing to comply with F.C.C. licensing procedures. Rather, the fundamental problem is that the F.C.C. has not provided procedures by which micro radio broadcasters can become licensed or authorized. Instead, the F.C.C. is applying severe administrative and criminal sanctions, intended for application to large-scale, commercial operators, to micro radio broadcasters with the goal of completely precluding all such broadcasts. When viewed in this light, the very notion of assessing substantial forfeitures of as much as $20,000 against individuals with no prior F.C.C. violations, accused of transmitting a brief, low-power, non-commercial broadcast, is ludicrous indeed. It is the obligation of the F.C.C. to construct and enforce its regulatory framework in such a way as to safeguard the First Amendment right of free speech for all persons, regardless of their economic power. By totally prohibiting low-power micro radio, the F.C.C. 1) fails to comply with its congressional mandate to regulate the airwaves in the public convenience, interest and necessity, 2) exceeds the limits of the power conferred upon it by Congress, and 3) violates the constitutional rights of micro radio broadcasters and their listeners. II. THE COMPLETE AND ABSOLUTE PROHIBITION OF MICRO RADIO BROADCASTS RESULTING FROM THE F.C.C.'S IMPROPER IMPLEMENTATION OF THEIR STATUTORY AUTHORITY VIOLATES THE FIRST AMENDMENT. The foremost purpose of requiring radio broadcasters to obtain licenses from the F.C.C. is to prevent interference from other radio broadcasts. The F.C.C. maintains that due to the finite size of the radio spectrum, or "spectrum scarcity", only a limited number of radio frequencies are capable of broadcasting at the same time in the same space without undue interference from neighboring signals. The F.C.C. argues that this so-called spectrum scarcity somehow justifies the application of a lower level of First Amendment protection for persons utilizing the air-waves as compared to other forums. The F.C.C. itself, however, has found the concept of "spectrum scarcity" to be an improper basis for applying a different constitutional standard to broadcast media than to other forms of media. In re Syracuse Peace Council, 2 F.C.C. Rcd 5043 (1987). As the Commission pointed out in Syracuse Peace Council, while it may be true that there are only a finite number of broadcast frequencies, this is no less true of the computers, delivery trucks, ink and newsprint which are used in the production of printed speech: . . .[W]e simply believe that, in analyzing the appropriate First Amendment standard to be applied to the electronic press, the concept of scarcity -- be it spectrum or numerical-- is irrelevant. As Judge Bork said in Trac v. F.C.C. [801 F.2d at 508], 'Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.' 2 F.C.C. Rcd 5043, 5055. The Commission went on to state that: [The] First Amendment was adopted to protect the people not from journalists, but from the government. It gives people the right to receive ideas that are unfettered by government interference. We fail to see how this right changes when individuals choose to receive ideas from the electronic media instead of the print media. There is no doubt that the electronic media is powerful and that broadcasters can abuse their freedom of speech. But the framers of the Constitution believed that the potential for abuse of private freedoms posed far less a threat to democracy than the potential for abuse by a government given the power to control the press. (Id. at 5057.) The F.C.C. must ensure that their regulations provide micro radio broadcasters the same constitutional protections that have been established for more traditional means of expression. The F.C.C. is constitutionally required to develop a regulatory procedure appropriate to this media rather than simply creating and enforcing a complete and absolute prohibition of micro radio. This current F.C.C. policy constitutes a prior restraint of free speech in violation of the First Amendment. The people of the United States have a constitutionally protected interest in free speech by means of radio and other forms of broadcast media. The Supreme Court has previously recognized the supremacy of the rights of the people as a whole to have the medium of radio function consistently with the ends and purposes of the First Amendment. Red Lion Broadcasting, 395 U.S. 367, 390 (1969). Given the Supreme Court's recognition of the supremacy of these public rights, the F.C.C.'s assertion of an, at best, remote, and as yet undocumented possibility that micro radio may interfere with the broadcasts of licensed, commercial stations is simply inadequate to overcome the right of radio listeners to receive the broad variety of view-points, perspectives, and programming formats which micro radio offers. The advent of micro radio not only gives radio listeners a low-cost alternative to the perspectives presented on mainstream, commercial radio, but it furthermore allows members of the public the opportunity to participate and present their own personal and local community interests in a direct and effective way, making the public airwaves truly public for the first time. [COMMUNICATIONS SYSTEMS IN OTHER COUNTRIES. . .] In Appendix 1 of the F.C.C.'s Report and Recommendations in the Low Power Television Inquiry (BC Docket No. 78- 253)(1980???) the study of very low power FM transmitters conducted on behalf of the Canadian Department of Communications recommended that application forms and required information be simple enough to allow for easy application by potential low power licensees. Id. at 50. Such an application, along with rules governing broadcasts on low power micro radio stations, is included here as Exhibit 1??? (see attached). These forms request operational information (name of licensee, address, etc.), technical information (frequency/channel, antenna location, type of equipment, etc.) information concerning the community being served, and statements as to how operation of a low power transmitter will serve the needs of the community. A cursory examination of Exhibit 1 indicates that the licensing and administrative requirements necessary to oversee operation of micro radio stations are not burdensome. Indeed, these licensing forms reveal that micro radio can be easily regulated so as to prevent any risk of signal interference, and that rules which prohibit the operation of micro radio where there is a compelling need are an arbitrary exercise of the Commission's powers which fail to advance the public interest. Safety concerns/Planes falling from sky. III. THE FCC's FAILURE TO PROVIDE FOR MICRO RADIO BROADCASTING RESULTS IN THE COMPLETE PROHIBITION ALL MICRO RADIO BROADCASTING, IN VIOLATION OF 47 CFR § 73.201 ET SEQ. The Commission has recently gone to great lengths to argue that its regulations do not in fact completely prohibit micro radio. In its "Forfeiture Order" in a case very similar to Mr. Dougan's , the Commission stated the following: [The alleged offender] could have, in fact, petitioned the Commission to amend its rules in Part 73 to once again allow operation at the 10 watt level in the reserved Non-Commercial Educational FM band between 88 and 92 MHz, or he could have applied for a station license (authorization) to operate a 10-watt station on a channel above 92 MHz, or he could have petitioned the Commission to amend its rules to allow non-licensed operation under Part 15 of the rules with signal strengths in excess of that currently permitted. . . . The reply fails to note that non-licensed operation of radio transmitters as "micro radio broadcasts" on any frequency of the operator’s choosing within the FM broadcast band is in fact provided for in a blanket authorization per 47 CFR §15.239(b). Operation in excess of the field strength limits so provided constitutes activity for which a specific authorization - a radio station license - is required. If [the alleged offender] wished to have these limits raised, he could have petitioned the Commission to institute a rulemaking procedure to that end. In addition, were [the alleged offender] or his colleagues affiliated with a non-profit educational organization intending to use the station in the advancement of an educational program (however loosely defined), the organization would be eligible for licensing a Non-Commercial Educational FM Broadcast station, on available frequencies and on a non- interference basis, as detailed in 47 CFR §§ 73.501 et. seq. Provisions are made for operation at the power level of 10 watts - the general power level which [the alleged offender] appears to be using - on available channels above 92 MHz. The above is clear indication that there is no "complete and absolute prohibition" against what the reply continues to call "micro radio broadcasts." A careful analysis of the above listed opportunities for micro radio broadcasting within the F.C.C.’s current regulatory framework reveals that there is, in fact, a complete prohibition of micro radio broadcasting. The suggestions offered by the Commission break down to the following: 1) Petition the Commission to change the current regulatory framework; 2) Apply for a license to operate a 10 watt station above 92 MHz; 3) Broadcast as permitted under 47 CFR 15.239(b); 4) Apply for a license to operate a Non-Commercial Educational FM Broadcast station under 47 CFR §§ 73.501 et. seq. Number 2 above is, in effect, the same as petitioning for a rule change, since the minimum power requirements for acquiring a license to operate above 92 MHz are 100 watts or a six kilometer reference distance. Number 3 above is meaningless, since the field strength permitted by §15.239(b) is so low as to preclude any micro radio broadcast capable of being received beyond 1 or 2 blocks away from the transmitter. The Commission’s suggestion that a 10 watt broadcast could comply with the field strength limitations imposed by §15.239(b) is misleading, at best. Number 4 above is similarly misleading. 47 CFR §73.511(a) explicitly provides that "No new Non-Commercial Educational station will be authorized with less power than minimum power requirements for commercial Class A facilities," that is, less than 100 watts. While it may be true that no one is precluded under the current regulatory framework from applying for a license as the Commission suggests in number 4 above, it is also true that no such application can possibly be approved by the Commission under its current regulations. The deceptively long list provided by the Commission, then, boils down to "ask us to change our rules." Given that there are absolutely no standards or limitations governing the Commission’s discretion in considering an application for a rule change or waiver, this "option" is meaningless. It is well established in First Amendment jurisprudence that regulations which vest absolute or near absolute discretion in an agency to approve or deny exceptions to a generally applicable rule are unconstitutional. It is the obligation of the F.C.C. to construct and enforce its regulatory framework in such a way as to safeguard the First Amendment right of free speech for all persons, regardless of their economic power. By totally prohibiting low-power micro radio, the Commission has failed to comply with its congressional mandate to regulate the airwaves in the public interest, has exceeded the limits of the power conferred upon it by Congress, and is violating the constitutional rights of micro radio broadcasters and their listeners. III. THE F.C.C.'s ARBITRARY, CAPRICIOUS AND SELECTIVE METHOD OF ENFORCING RESTRICTIONS AGAINST MICRO RADIO WHERE SUCH BROADCASTS SERVE THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY PURSUANT TO 47 CFR §73.201 ET SEQ VIOLATES THE FIRST AMENDMENT INTERESTS OF MICRO BROADCASTERS AND THEIR LISTENERS. The F.C.C., in issuing Notices of Apparent Liability (N.A.L.) to micro radio broadcasters, regularly indicate that the forfeiture amount is determined pursuant to the F.C.C.'s Policy Statement, Standards for Assessing Forfeitures, (hereinafter "Policy Statement") and that according to the standards therein, "the base forfeiture amount for operation without authorization in broadcast services is $20,000.00." The F.C.C.'s Policy Statement, however, was never meant to be applied to unlicensed low power micro radio broadcasters. This is readily apparent from an analysis of the legislative history of the Policy Statement, and from the fact that such application in this case results in a base forfeiture amount that violates 47 CFR § 1.80(b)(3) and 47 U.S.C. § 503(b) , the statutory authority upon which the Policy Statement is based. The Policy Statement was adopted by the F.C.C. in July, 1991, and was released August, 1991. In June, 1992, the F.C.C. issued a Memorandum Opinion and Order denying several petitions for reconsideration of the Policy Statement (Memorandum Opinion and Order, 70 RR 2d 1207), wherein the F.C.C. explained the background of the Policy Statement: In 1989, Congress amended the Communications Act of 1934 to increase substantially the maximum dollar amounts of forfeitures the Commission could impose under Section 503(b) and under other sections of the Act. Previously, Section 503(b) limited the Commission's forfeiture authority to $20,000 for broadcasters and common carriers and to $5,000 for all other services. The amended section 503(b) now provides the Commission with authority to assess forfeitures of up to $25,000 against broadcasters, cable operators, or applicants for such facilities, $100,000 against common carriers or applicants for such facilities, and $10,000 against others. . . . The Commission's forfeiture rule [47 CFR § 1.80(b)(1)-(3)] has been amended to reflect the higher forfeiture amounts. . . . On August 1, 1991, the Commission released the Policy Statement to assist both the Commission and licensees in adjusting to the statutory increases. The Policy Statement provides base forfeiture amounts for a wide range of generic violations . . . . The base forfeiture amount for each type of violation is a percentage of the statutory maximum for the service involved for each violation. . . . The base forfeiture amount may be increased or decreased by applying adjustment criteria as relevant to the facts of any particular case." Memorandum Opinion and Order, 70 RR 2d 1207 [emphasis added]. The Memorandum Opinion and Order specifically states that the Policy Statement was released to assist "the Commission and licensees," and both the Memorandum Opinion and Order and the Policy Statement itself refer numerous times to the effect of the Policy Statement on licensees, but neither make any mention whatsoever of non-licensees. Moreover, the standards set forth in the Policy Statement list thirty-eight categories of violations to which the new standards are to be applied. None of these categories refers to unlicensed radio broadcasts. The F.C.C. apparently bases the determination of micro radio forfeiture amounts on the standards set forth in the Policy Statement for violations within the category listed as "Construction and/or Operation Without an Instrument of Authorization for the Service." (Policy Statement, Standards for Assessing Forfeitures, appearing in the Appendix to the Memorandum Opinion and Order, 70 RR at p. 1211). The F.C.C., apparently interprets this category to include unlicensed micro radio broadcasting. Such an interpretation of the Policy Statement is, at best, strained. When the F.C.C. has, in the past, instructed its agents and the public as to the forfeiture amounts to be assessed for unlicensed radio operations, it has stated its intention plainly and clearly. Public Notice 2049, promulgated March 5, 1990, and published at 67 RR 2d 619, stated: FCC TO INCREASE FINES FOR UNLICENSED RADIO OPERATIONS Unauthorized Radio Operations; Forfeitures. The Amount of the routine administrative monetary forfeiture for unauthorized operation of a radio station is increased from $750 to $1000. The routine forfeiture amount for first violations of the proscription of unauthorized operation in the aviation, maritime, public safety and special emergency radio services is increased from $1000 to $1,250. These increases are prompted by increasing complaints of interference stemming from illegal pirate operations and other unauthorized activities. Unlicensed Radio Operations (Routine Fines). 67 RR 2d 619 [1990]. The Commission is increasing the amount of a routine administrative monetary forfeiture for the unauthorized operation of a radio station. The usual amount for a first time violation will be changed from $750 to $1000. . . . The increases were prompted by numerous complaints of interference resulting from "piracy" of the airwaves. FCC licensees, broadcast associations and radio listeners have reported increased illegal operations and a proliferation of abusive activities. Such malicious practices violate FCC's Rules, impede efficient management of the spectrum and frustrate spectrum users." 67 RR 2d 619 The F.C.C. has issued no subsequent Public Notice indicating any further change in F.C.C. policy or guidelines with respect to unlicensed micro radio broadcasting. The Policy Statement that was issued in 1991 cannot, under any reasonable interpretation of its language or history, be held to supersede Public Notice 2049. The Policy Statement, as discussed above, was issued in response to, and in keeping with, the statutory increases contained in the 1989 amendments to 47 U.S.C. § 503(b). Those increases were, as the F.C.C. has noted, "substantial." (Memorandum Opinion and Order, 70 RR 1207). The maximum forfeiture amounts for the various categories of violators were increased, respectively, as follows: Licensed broadcasters, cable operators, or applicants for such facilities, increase of 25%, from $20,000 to $25,000; Common carriers or applicants for such facilities, increase of 500%, from $20,000 to $100,000; All others, increase of 100%, from $5000 to $10,000. However, the F.C.C.'s attempt with respect to micro radio broadcasters to apply the policy statement to unlicensed micro radio broadcasts results in an increase of as much as 2000%, from the $1000 indicated in Public Notice 2049 to the "base forfeiture" of $20,000 alleged in the recent N.A.L. filed against micro radio broadcaster Steven Dunifer. Such a result was plainly not contemplated by the authors of the Policy Statement. If the F.C.C. meant to change its procedures so drastically with regard to so-called "pirate" radio operations, it was required to so indicate in a manner that could be understood as clearly as Public Notice 2049. After such a clear and unambiguous statement of policy as that contained in Public Notice 2049, the Policy Statement of 1991 cannot be said to provide reasonable or adequate notice that the policy was being changed. There is a simple explanation: The F.C.C. obviously did not intend the Policy Statement to supersede Public Notice 2049 with regard to unlicensed radio operation. Furthermore, it is arbitrary and capricious for the F.C.C. to levy any fine against micro radio broadcasters with no opportunity for a hearing, no opportunity to meet with the F.C.C., no explanation of how one might legally continue broadcasting, and without proper consideration of the statutorily mandated factors for determining the amount of the fine. The alleged micro radio transmissions at 1/10th or less of the power emitted by the smallest licensed commercial broadcast, without commercial profit or motive, causing no interference whatsoever, by a private individual interested only in exercising his constitutional rights cannot logically warrant the type of penalty assessed against Dougan and other micro radio broadcasters by the F.C.C. In issuing their Notice of Apparent Liability (N.A.L.) to micro radio broadcasters, the F.C.C. has also recently relied upon the Policy Statement, Standards for Assessing Forfeitures category "Failure to permit inspection." 47 CFR §15.29(a) provides that: Any equipment or device subject to the provisions of this part, together with any certificate, notice of registration or any technical data required to be kept on file by the operator, supplier or party responsible for compliance of the device shall be made available for inspection by a Commission Representative upon reasonable request. However, micro radio broadcasters are not permitted to hold an F.C.C. license which would subject them to any inspection requirements imposed by the Communications Act. Furthermore, the language of §15.29(a) is extremely broad. The section applies to "any equipment or device subject to the provisions of this part." With respect to which equipment or devices are "subject to the provisions" of Part 15, §15.1 states the following: Scope of this part. (a) This part sets out the regulations under which an intentional, unintentional, or incidental radiator may be operated without an individual license." Thus, any "intentional, unintentional, or incidental radiator" that may legally be operated without an individual license is "subject to the provisions" of Part 15. Given the extremely broad scope of 47 CFR Part 15, it is clear that the base forfeiture amount set by the 1993 Policy Statement for "failure to permit an inspection" was not intended for application to violations of §15.29. To hold otherwise leads to the absurd result that the F.C.C. could knock on any person’s door at 9:30 p.m. and demand immediate entry, with no warrant and without even an allegation or complaint of interference with commercial, navigational, or other licensed broadcasts, to "inspect" the person’s television set, cordless phone, or personal computer. Refusal to permit entry would, under the N.A.L’s suggested construction of §15.29 and the Policy Statement, subject the person to assessment of a substantial forfeiture. A much more reasonable interpretation of the Policy Statement is that the category entitled "Failure to permit inspection" does not include violations of Part 15, but rather refers to licensed broadcast stations subject to the various inspection requirements upon which those licenses are conditioned. A fundamental precept of statutory construction is that statutory language cannot be interpreted in such a way as to lead to an absurd result. The F.C.C.'s application of the Policy Statement in their N.A.L. to micro radio broadcasters involves just such a prohibited interpretation. CONCLUSION The National Lawyers Guild Committee on Democratic Communications firmly believes that F.C.C. policies prohibiting all operation of micro radio broadcasting constitute prior restraint prohibited by the First Amendment, exceed the F.C.C.'s constitutional authority, and are inconsistent with the F.C.C.'s established guidelines and function. The Committee on Democratic Communications also firmly believes that these same F.C.C. policies are violative of Due Process and Equal Protection in that they discriminate against the poor and minorities, and do not provide for adequate representation by counsel or opportunity for a hearing or administrative review. In addition, the F.C.C.'s Notice of Apparent Liability issued to Mr. Dougan and other micro radio broadcasters is often defective in numerous regards. The F.C.C. frequently fails to comply with its own procedures, the forfeiture imposed is grossly disproportionate, given these broadcasters' income and assets and the nature of the alleged offenses, and the forfeiture is often based upon unsubstantiated accusations with insufficient evidentiary support. Based on the foregoing, the National Lawyers Guild Committee on Democratic Communications urges the Court to instruct the F.C.C. to draft new regulations allowing for the operation of micro radio stations where such operation serves the public interest, convenience and necessity as required pursuant to 47 CFR §73.201 et seq. Until such time as these new regulations are drafted and implemented, all F.C.C. procedures with respect to micro radio should be suspended. Dated: Respectfully submitted, NATIONAL LAWYERS GUILD COMMITTEE ON DEMOCRATIC COMMUNICATIONS ________________________________ LUKE HIKEN Staff Attorney It is important to note that the 100 watt minimum is a regulatory creation of the F.C.C. The F.C.C.'s decision was justifiably criticized shortly after implementation in Note, Educational FM Radio - the Failure of Reform, 34 Fed. Com. L.J. 432 (1982). Nothing in the Communications Act (47 U.S.C. 151 et. seq.), on its face, prohibits micro radio broadcasting. To the extent that the F.C.C.'s regulations have effectively banned micro radio, the regulations are in conflict with the statutory framework and must be set aside. In the Matter of Steven P. Dunifer, NAL/Acct. No. 315SF0050; SF-93-1355. Quotes are from the "Forfeiture Order" in In the Matter of Steven P. Dunifer (attached hereto and marked as exhibit "A"), at pages 3, 6. 47 C.F.R. §§ 73.211 et. seq., 73.511. The base forfeiture amount determined by the F.C.C. in this case is $17,500. 47 U.S.C. §503(b) and 47 C.F.R. §1.80 set a statutory maximum of $10,000 for violations by non-licensees who are not common carriers. 8 FCC Rcd 6215 (1993) (hereinafter "Policy Statement"). [--- Unable To Translate Graphic ---] [--- Unable To Translate Graphic ---] [--- Unable To Translate Graphic ---] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28