Steal This Radio's Appeal | Oral Argument | Sept. 13 | Federal Court

["Grugnog" <grugnog@tao.ca>]

[: hacktivism :]

Microradio is IMHO an excellent example of hacktivism (using, of course, a
broad definition of hacking).
- Grug

-----Original Message-----
From: worker-news@lists.tao.ca [mailto:worker-news@lists.tao.ca]On
Behalf Of Greg Ruggiero
Sent: Friday, September 17, 1999 2:45 AM
To: nyfreemedia@tao.ca
Cc: microradio@lists.tao.ca; nlgcdc@agora.rdrop.com


Oral Argument made on Behalf of Steal This Radio

by Robert Perry of the Center for Constitutional Rights
regarding the case Free Speech Vs the FCC

------------------------------------------------------------

Statement made on September 13, 1999
Federal Court of Appeals, New York City

------------------------------------------------------------

May it please the Court, my name is Robert Perry.
I represent the Appellants.

I will reserve three minutes for rebuttal.

This is a case of first impression. It concerns an unlicensed
low-power radio station which broadcast community programming
including local news and public affairs shows on the Lower East
Side of New York City for more than three years, without causing
any signal interference or threatening public safety.

Like hundreds of other microradio stations that have cropped up
in communities all over the U.S. over the last decade, Steal This
Radio came into existence because the sharp decline in local
programming on commercial and noncommercial radio stations--a
decline brought about by, among other things, the FCC's 1978
decision requiring all new noncommercial FM radio stations to
operate with at least 100 watts of power, its deregulation of
commercial radio stations in the 1980's, and the massive
consolidation of station ownership prompted by the Telecom Act
of 1996.

Radio is our most pervasive and portable mass medium. It is available
inside and outside the home. It is listened to for several hours daily
by most people, even the poorest in society who cannot afford cable TV
and Internet access. It remains a vitally important mass medium for
core political speech. Yet communities all across the U.S. have had to
increasingly rely on unlicensed microradio stations to bring them news,
debate and commentary on many local issues of public importance.

This Court must decide an important First Amendment issue: whether the
spectrum dedicated to radio broadcasting is a public forum. Appellants
submit that it is.

 From the very inception of radio communications, nearly a century ago,
spectrum has served as a forum for local expression, at first through
the thousands of "amateur" stations that dominated the airwaves prior
to 1920 and then through the early broadcast stations, many of which
were operated on a non-commercial basis by local education institutions,
churches, and labor unions.

As a result, the radio broadcast spectrum quickly came to be regarded
as a "public medium" and analogized to the public roads.

Prior to 1927, that spectrum was generally accessible, since anyone who
wanted a license to operate a radio broadcast station could have one.

Even after selective licensing was adopted in 1927, the radio broadcast
spectrum remained generally open, at least in a virtual sense, because
broadcast licenses had to serve as "proxies for the entire community,"
with obligations to present representative views and voices, in exchange
for the privilege to exclusively use scarce broadcast frequencies.
In short, the radio broadcast spectrum remained designated for public use.

Contrary to the District Court's view, the Government has not reserved
eligibility for broadcast licenses to a particular class of speakers.
Anyone, in theory, may apply for a broadcast license. While applicants
must satisfy certain technical and financial criteria, those are more
akin to the technical and financial requirements imposed on individuals,
groups, and companies seeking to use traditional public fora for large-scale
events or news rack placements.

Merely because the Supreme Court has held that individual broadcast
stations do not qualify as public fora does not mean that the frequencies
over which  they operate cannot be considered part of an electronic
public forum and under what conditions. Yet the "public interest"
standard gives the FCC such unfettered discretion.

If the spectrum dedicated to radio broadcasting is a public forum, as do
the appellants submit, the "public interest" standard under which the
FCC has awarded broadcast licenses, and set the terms and conditions
of broadcasting, cannot possibly survive First amendment scrutiny.

It is well settled that government officials may not have unbridled
discretion to decide who may and may not speak in a  public forum and
under what conditions. Yet the "public interest" standard gives the
FCC such unfettered discretion.

 From its first appearance in the Radio Act of 1927, the "public interest"
standard has, time and again, been labeled vague and amorphous by, among
others, at least one FCC Chairman, more than a few FCC commissioners,
and the National Association of Broadcasters' general counsel.

To be sure, the Supreme Court twice upheld the "public interest"
standard in the early 1940's--a long time ago. That standard, however,
was not challenged on First Amendment grounds. Nor was the Court presented
with any claims based on the public forum doctrine. Nor did it have
before it the long record of capricious broadcast licensing decisions
that now exists--a record that prompted the D.C. Circuit several years
ago to note the "undue subjectivity" in FCC broadcast licensing decisions.

While judicial review is available in the circuit courts, that hardly
constrains the FCC's "wide discretionary power" under the "public interest"
standard since substantial deference is given tot he FCC about where the
public interest lies.

Because of the time limits, Appellants will rest on their briefs on
the other important issues on this appeal.

# # #

------------------------------------------------------------
Perry states that it may take up to three months for the Court
to release its decision on this case.  If the Court does not decide
in our favor, Robert Perry and Barbara Olshansky will submit the
case to the US Supreme Court.

Many of the legal papers that Perry and Olshansky have written
on behalf of Steal This Radio are archived on the web site of the
New York Free Media Alliance.

La Lucha Sigue,
Greg Ruggiero

-----------------------------------------------------
New York Free Media Alliance |

Media for Change  | Changing the Media

  listserve: nyfreemedia@tao.ca
  voicemail: (212) 969-8636

website: http://artcon.rutgers.edu/papertiger/nyfma
----------------------------------------------------



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