IJ’s Micro-radio Case Appealed to High Court

May 23, 2008

November 2000


IJ’s Micro-radio Case Appealed to High Court

By: Scott Bullock

The U.S. Supreme Court is now considering whether to review the Institute for Justice’s petition for certiorari on behalf of micro-broadcaster Alan Freed. This is the first micro-radio case to reach the Supreme Court for consideration. The petition raises a vital question: can the government seize a person’s property without an opportunity for the accused to raise constitutional rights?

As you will recall, we represent Roy Neset, a North Dakota farmer who broadcasted a low-power radio signal from his house to his tractor and a few other neighbors until the Federal Communications Commission (FCC) shut him down. We have been waiting for a decision in that case for more than a year and a half. In the meantime, we were approached about doing a petition to the Supreme Court on behalf of Freed.

Freed and hundreds of other micro-broadcasters like him have become outlaws at the hands of the federal government’s misguided and unconstitutional suppression of low-power radio broadcasters. As readers of this newsletter know, Freed and Neset are part of a growing, nationwide movement of individuals establishing small micro-radio stations. Micro-radio stations run the gamut from Freed’s dance music station to Neset’s talk radio station in North Dakota, from Spanish language shows in Cleveland and Miami to a Christian Rock station in Connecticut.

A vast majority of these stations (including Freed’s and Neset’s) do not interfere with existing stations, but the FCC still goes after them in court. The FCC points out that it is illegal to broadcast without a license from the agency, but since 1978 the FCC has refused to license micro-broadcasters. The FCC recently issued rules allowing micro-broadcasters to apply for licensure, but flatly disallowing any micro-broadcaster who previously engaged in unlicensed broadcasting, including Freed, from securing a license. Even this limited licensure for new micro-broadcasters is under attack on Capitol Hill and may very well be repealed.

At stake in this case is the ability of individuals to defend themselves in court by raising constitutional arguments when sued by federal administrative agencies. The FCC wants to establish its prerogative to bring suits against individuals in federal court and then limit the issues to whether the person is violating a particular federal statute (in this instance, broadcasting without a license) and leave any other issues, including constitutional ones, to the agency itself. That would mean Freed and others like him would be left at the mercy of the FCC’s own administrative process, a process notorious for delays, inaction and a refusal to take constitutional arguments seriously. Our petition takes a common sense approach and one that has a solid basis in the law: when the federal government decides to sue you in federal court, you should be allowed to defend yourself by raising all applicable defenses, especially constitutional arguments.

Of course, it is always a long shot to get a case accepted by the Supreme Court, but the law in this area is highly unsettled. Although the Eighth Circuit Court of Appeals eventually ruled against Freed, the Sixth Circuit came to the exact opposite conclusion in another micro-radio case. This “circuit split” increases the likelihood of the Supreme Court accepting the case for review. The Court will likely make a decision on whether to accept the case by early next year.

Scott Bullock is an Institute for Justice senior attorney.

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