COURT SAYS RADIO PIRATES CAN BE DENIED LICENSES BASED ON CHARACTER
U.S. Appeals Court, D.C., ruled Fri. that pirate radio operators could be denied low-power FM licenses based on character qualifications established by Congress in Radio Bcstg. Preservation Act (RBPA) of 2000. Ruling 7-1 in Greg Ruggiero v. FCC, judges said character provisions of Act didn’t violate First Amendment rights of former radio pirates. NAB hailed decision, while Ruggiero’s attorney said case would be appealed to Supreme Court. FCC spokesman said agency’s lawyers were reviewing decision and had no immediate comment.
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Attorney for admitted former radio pirate Ruggiero had argued RBPA was unconstitutional on variety of grounds. Attorney Robert Perry and Center for Constitutional Rights had questioned why convicted rapists and murderers who had been rehabilitated were entitled to apply for low-power FM (LPFM) licenses, while Ruggiero, who pirated radio to advocate for tenants in tenant-landlord disputes in N.Y.C., automatically was banned for life from holding license. What’s more, Perry said, law appeared to ban only radio pirates from holding low-power FM licenses, not high-power FM nor AM licenses, thus excluding them from only certain licenses. “We will obviously petition the Supreme Court for review,” Perry said. “I think this [decision] raises important First Amendment issues.”
RBPA came about after FCC had said it would accept low- power applications from applicants who had broadcast without licenses in past as long as they certified under penalty of perjury that they had ceased such operations within 24 hours of being directed to do so by Commission and no later than Feb. 26, 1999. Commission’s proposal conditionally to license former pirates dismayed some members of Congress, who subsequently enacted RBPA. Act prohibited applicants from obtaining license if they had engaged in “any manner in the unlicensed operation of any station in violation” of Communications Act of 1934. Congress barred pirates from obtaining LPFM licenses regardless of whether and when they ceased operating illegally. FCC enacted 2nd Report and Order to reflect Congress’s wishes, and Ruggiero appealed.
At first, divided panel of court held RBPA and FCC’s regulation unconstitutional, but Commission petitioned for rehearing and en banc court vacated prior decision. Full court now says character qualification doesn’t violate Constitution. Writing for majority, Chief Judge Douglas Ginsburg said character qualification didn’t disqualify applicants based on content or their views and govt. had substantial interests in deterring unlicensed broadcasting and preventing further violations.
Judge David Tatel, sole dissenter, said FCC had ample authority to deny licenses to former pirates who, in Commission’s judgment, couldn’t be trusted to function “as truthful and reliable licensees.” But, Tatel wrote, question here is whether unlicensed microbroadcasters, many of whom already had been punished, could 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 nature of offense or evidence that they could operate in public interest. Tatel called statute “double standard” that was “indefensible.” Spokesman for NAB, which was concerned about possible interference from pirates, said association was “pleased the court upheld the congressional intent.”