"Nonsense on stilts": D.C. Appeals Court Upholds Anti-Pirate LPFM Ban

More depressing news from our so-called “justice” system: the D.C. Circuit Court of Appeals has upheld the “no-pirates” clause in the FCC’s LPFM rules. The clause was challenged by Greg Ruggiero, a member of the former Steal This Radio collective in New York. A three-judge panel of the the same court initially declared the blanket exclusion unconstitutional about a year ago. The FCC petitioned for a re-hearing of the case in front of the full bench, which was granted – leading to the reversal of the previous decision yesterday.
After rejecting both primary arguments articulated by Ruggiero and the FCC against and for the anti-pirate clause, the court struck out on its own path to denying the challenge to the ban. Ruggiero, in part, argued that many other individuals and entities licensed by the FCC have been found guilty of worse crimes than radio piracy. Therefore, Congress’ late-2000 passage of the “Radio Broadcasting Protection Act,” which overrode the FCC’s original rule and banned pirates completely and permanently from the new service (the FCC originally granted unlicensed broadcasters a limited window of amnesty under which to apply for an LPFM license) was unconstitutional.
The court didn’t buy it, to put it mildly. “This is nonsense on stilts,” wrote Chief Judge Douglas Ginsburg. In his view, Congress has the necessary authority to modify a government agency’s regulations in order to keep lawbreakers from benefiting from their actions. Basically, Ginsburg’s reasoning goes, all pirates have already violated the Communications Act by broadcasting without a license, so why should they deserve special treatment from the FCC?
A great example of twisted logic follows: “Not only are murderers, rapists, child molesters, and the like not particularly associated with the harms caused by unlicensed broadcasting, the harms that these malefactors do cause are not without other and more severe penalties (state or federal) than ineligibility for an LPFM license.” Later on, Ginsburg writes, “The judgment that one offense is more serious than another, like the judgment that a punishment of a certain severity is warranted for a particular offense, is not for the judiciary to make.”
It is here where the entire decision seems to break from reality. First, Ginsburg assumes that Congress’ decision was rational and carried out with prudent thought, based on quotes from the floor speeches given by the sponsors of the “Radio Broadcasting Preservation Act” – Representative Michael Oxley (R-OH) and Senator Rod Grams (R-MN: voted out of office the same year, in part because of his decision to sponsor this legislation).
However, it’s important to recognize the context in which those words were spoken. In the 2000 election cycle, Oxley received more than $10,000 from broadcast interests opposed to the FCC’s LPFM legalization effort; Grams raked in a similar amount for his sponsorship of the bill. These are only the donations that are immediately identifiable, and exclude contributions from individual broadcast industry executives and lobbyists. The court also ignored the context in which the bill was approved – as a last-minute rider attached to a larger package of federal budget legislation – was also ignored by the court.
The blanket ban on unlicensed broadcasters from participation in the LPFM service was not even germane to the issues behind the “Radio Broadcasting Preservation Act” itself, which was to address the FCC’s “erroneous” judgment in relaxing interference protection standards to allow more stations on the FM dial. Kicking microbroadcasters in the ass was an afterthought of the broadcast industry, a value-added service to be provided by politicians already bought and paid for.
Then there is the selective presentation of facts involved in the discussion of the case itself: the court’s background review of the issue references interference caused by unlicensed broadcasters to aircraft and public safety radio frequencies. None of the examples are cited from a specific case, and many of these types of interference cases involve amateur radio or citizen’s band (CB) broadcasting. CB and ham signals cause interference in forms and conditions where FM signals would not pose any problems. Apples can indeed be oranges. Even more appalling, the interference problems attributed to pirate activity are then used to explain, in part, why the FCC created an LPFM service. If the pirates are so bad, why would the FCC move to legalize their activity? What part of this logic am I missing?
(For the record, there have been at most two publicly-confirmed cases of unlicensed FM broadcasters causing interference to the radio services discussed here, and both occurred several years ago. The problem is not as widespread as the court would like to believe, especially with regard to unlicensed FM broadcasting.)
The FCC itself engaged in a bit of truth-twisting when it argued in its brief that pirates applying for an LPFM license would’ve been rejected anyway even without a ban in place, based on the FCC’s “general character qualifications” for license-holders. This is patently false: there are documented instances in the past where former FCC rule-breakers have gone on to get broadcast licenses. The character qualification issue is presented as a clear-cut standard the FCC applies equally in all licensing decisions; the truth is different.
Answer me this, oh learned D.C. Circuit Court of Appeals: if the FCC was initially willing to allow unlicensed broadcasters into the LPFM fold, then does that make the limited amnesty awarded by the FCC’s original LPFM regulations somehow unlawful? Could it might possibly be that, in this instance where the agency has expertise (technical and otherwise) in the field that the court cannot even begin to comprehend, it recognized that the scope of the law – its own enabling statute, to be exact – was not as cut-and-dried as you would like to believe?
Of course, the lawyers will say, it is not the place of the court to consider such factors when ruling on matters of law. I say that’s bullshit. This case is a perfect example of how the corrupting influence of corporate interests on one branch of government has effects far wider than we realize. Thanks to this decision, the pirate ban in LPFM has been legitimized – we all know it was a raw deal, born from back-handed dealings in a closed-door legislative proceeding. This no longer matters; the injustice is final now.
Others have said it before, but I must say it again: a law carries maximum effect only if it is a just law. This is an unjust law. Protest against an unjust law is the last refuge for change in such situations. It is what enables protest with moral authority. If anything good comes from this decision, that moral authority has been strengthened for microbroadcasters.
Even though the decision was 7-1, two judges felt compelled to issue their own statements concurring with the majority. Circuit Judge A. Raymond Randolph opines that Ruggiero and his attorney have so badly misinterpreted constitutional law that they don’t have a valid premise on which to challenge the pirate ban; Circuit Judge Judith Rogers dismisses Ruggiero’s challenge based primarily on the grounds that he never attempted to work through the FCC’s (nonexistent) administrative process and exhaust his options before pursuing a court challenge.
Finally, we hear from the lone voice of reason on the panel, Circuit Judge David Tatel, whose dissent is quoted nearly intact:
“The question presented here is whether unlicensed microbroadcasters, many of whom have already been punished for their misdeeds, may be subjected to a unique and draconian sanction that automatically and forever bars them–unlike any other violator of the Communications Act or regulations–from applying for low power licenses regardless of either the circumstances of their offenses or evidence that they can nevertheless operate in the public interest. Because this double standard is indefensible, because the statute’s automatic lifetime ban restricts speech, and because the court, though purporting to embrace this circuit’s more than minimal scrutiny standard, actually subjects the statute to the minimal scrutiny reserved for non-First Amendment cases, I respectfully dissent.”
I’m not sure whether a petition to the Supreme Court is in the works (or whether it is even possible in this case). As it stands, there has been no public declaration by the litigant to do so.