Federal court orders pirate radio station off the air

CIR defended the owner of low power, non-commercial radio station, Grid Radio 96.9 FM in Cleveland, in “cease and desist” prosecution brought against it by Federal Communications Commission and represented it in a constitutional challenge to FCC’s refusal to issue licenses to low-wattage “micro-broadcasters.” The low-power station, which broadcasted music and public service programming to Cleveland’s gay community, went off the air following a 3-year battle with the Federal Communications Commission. But Grid Radio founder Jerry Szoka’s continued to fight to vindicate his First Amendment rights in a federal appeals court in Washington, D.C. The appeal received a boost from the district court judge’s ruling, which expressed serious doubts about the constitutionality of the FCC ban.

In her February 23 ruling in U.S. v. Szoka, U.S. District Court Judge Kathleen McDonald O’Malley explained that she was obligated to enforce the FCC’s cease and desist order against Szoka, but that he could pursue his First Amendment challenge before the U.S. Court of Appeals for the District of Columbia. Judge O’Malley expressed doubt that the FCC’s attack on Szoka could survive a First Amendment challenge, observing that the Commission’s ban on microbroadcasting has:

[T]he effect of giving access to the airwaves only to those who are wealthy enough to afford the expensive equipment necessary to broadcast over 100 watts. . . . [Thus] it is certainly arguable that the ban came dangerously close to, if it did not actually step over the line of, choosing among applicants on the basis of their political, economic or social views . . ., which would be inconsistent with both the constitution and the FCC’s statutory mandate.

In a complete about-face, the FCC lifted its prohibition on microbroadcasting. But Szoka’s case was governed by the old rules, and Szoka was barred from seeking a license under the new rules because of his past defiance. Judge O’Malley characterized as “vindictive” the FCC’s refusal to allow pirate broadcasters to apply under the new rules, noting that the “tenacity” of microbroadcasters such as Szoka helped to force the FCC’s rule change.

The FCC’s now-defunct rule against low-power broadcasting was based on the agency’s contention that microbroadcasting would lead to interference with commercial radio stations. The FCC conceded that the rule was unnecessary. Moreover, the FCC admitted that it never received any complaint of interference caused by Szoka’s low-wattage broadcasts.