My Thoughts On The FCC

For the past few days, I’ve been reading about how small microbroadcasters are routinely harassed by the“powers that be”. One such story of interest has greatly grabbed my attention. 

In May of 1998, a low-power outlet known as “Steal This Radio” brought an action against the FCC in federal court for the Southern District of New York. The operators claimed laws against unlicensed broadcasting to be unconstitutional, and requested that the Commission be legally barred (through injunction) from seizing the station and its equipment (1).

On March 16 1999, after a contentious ten months of argument on the matter, judge Michael Mukasey decided in favor of the government, denying the station’s request (2).

Again mentioning the disclaimer that I’m not a lawyer, here’s why I think the Court got this one wrong.

First off, the judge discusses the topic of jurisdiction, holding by implication that the Court is not the proper venue for a challenge to Commission regulations; the Commission itself is.

I find a good deal of fault with this; the judge is basically saying that the Commission is “judge, jury, and executioner” on all matters regarding licensing. To me, that idea seems to fly in the face of “redress of grievances”, and is thus misguided (3).

Also, if the FCC is the sole arbiter of its own rulings, how can one effectively challenge such decisions? In such cases, hoping that a judgment against you will be overturned is an exercise in futility and false hope; for the “big boys” will always look after their own. It’s a bit like a prisoner getting to decide his own punishment.

Second, the defense asserted that “there is no First Amendment right to broadcast”. I think this argument is fallacious (see definitions) in its nature.

Let’s take a quick look at the Amendment in question. It says,“Congress shall make no law…abridging the freedom of speech, or of the press…”

Now, past precedence notwithstanding, I don’t recall seeing anything there to the effect of “except on the airwaves”. Maybe I missed it, but it doesn’t appear that such a phrase is included among the right to free press and free speech.

Having discussed the “Steal This Radio” case, let’s examine some statements that the Commission has made in defense of its enforcement tactics.

1: “Broadcasting isn’t a public forum. We can’t allow everyone to broadcast: there would be anarchy!"

Somehow, I don’t think everybody and their brother are clamoring to get on the air. People have other hobbies...like stamp collecting. And the airwaves don’t belong to Washington.

2: “Unlicensed broadcasters are a danger to the public, because they interfere with emergency services.”

It could just be me not paying attention, but I haven’t heard of even one station that has intentionally done this (have you?).

3: “Low-power stations interfere with full-power stations.”

In my experience, many such stations take great pains not to do this. By the way, how is a dinky five watt station in the middle of nowhere going to interfere with a fifty thousand watt powerhouse? Scientifically speaking, this makes no sense at all!

4: “Some people don’t cooperate with us.”

Constitutionally speaking, people don’t have to. See the Fourth Amendment, Fifth Amendment, right not to engage in self-incrimination, and right to refuse to speak unless accompanied by an attorney. And in the event that you want to inspect, get a warrant, flat-foot!

5: “Well, the rights cited in Point 4 only apply to those accused of a crime.”

Oh, pardon me then. As similarly explained before, I must’ve missed the part of the Fourth Amendment that says, “except in cases where no crime has been alleged”. 

Here’s the bottom line; the FCC seems to be nothing but a big bunch of bullies. Since when do I need to ask the government for permission to speak? And since when does the government, if it doesn’t like what I’m saying, get to deny me that permission?

That’s not what “a free country” is all about!

Definition - 

Fallacious: Adjective, from fallacy: "a false or mistaken idea" (4). 

Sources:

1. Via Wayback Machine: B. Olshansky and R. Perry, “FCC Squelching Of ‘Pirate’ Stations 

Violates First Amendment”. Legal Times, 17 May 1999, web.archive.org/web/20000820210540/http://165.230.26.130/papertiger/nyfma/str/frankolsh.html. Accessed 12 Mar. 2024.

2. Via Wayback Machine: Mukasey, “Opinion And Order”. Free Speech, Steal This Radio, et al. v United States Department of Justice & Federal Communications Commission. United States District Court for the Southern District of New York, 1999; web.archive.org/web/20000820210329/http://165.230.26.130/papertiger/nyfma/str/opinion.pdf. Accessed 12 Mar. 2024.

3. “U.S. Constitution - Amendment 1.” USConstitution.net, www.usconstitution.net/xconst_Am1.html. Accessed 12 Mar. 2024.

4. “Fallacy.” Merriam-Webster Online Dictionary, www.merriam-webster.com/dictionary/fallacy. Accessed 12 Mar. 2024.