Federal Appeals Court Rules 2-1 Against Micro-broadcaster

John Kramer
John Kramer · December 1, 2000

Washington, D.C.—For now, North Dakota farmer Roy Neset’s micro-radio station will remain silent.  This week, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld a lower court decision depriving Neset of his ability to raise constitutional arguments against the FCC and its campaign against low-power radio.

“The decision defies the law and common sense,” said Scott Bullock, senior attorney for the Institute for Justice, a Washington, D.C.-based public interest law firm that handled Neset’s appeal.  “If the government sues you in court, you should be able to defend yourself by raising First Amendment arguments,” Bullock added.

Roy Neset is a farmer in Tioga, North Dakota, located in the upper northwest corner of the state.  There is one radio station in the area, an AM country station.  Neset wanted to listen to talk radio while cultivating his fields on his tractor, so he obtained a low-power radio transmitter, received written permission from a station in Colorado, and began transmitting that station via satellite on the FM airways.  His station’s signal extended only about five miles in each direction, most of which consists of Neset’s large farm and, as the court in this case found, does not interfere with any other radio station or in any way threaten public safety.  His station is also listened to by a handful of people in the area.  The case was started when the manager of the country station learned about Neset’s broadcasts and complained to the Federal Communications Commission (FCC).  The U.S. government ended up filing a lawsuit against Neset.

Neset is part of a growing, nationwide movement of individuals establishing small, “micro-radio” stations. Micro-radio stations run the gamut from Neset’s talk radio station to Alan Fried’s dance music station in Minneapolis, from Spanish language shows in Cleveland and Miami to a Christian Rock station in Connecticut.  They broadcast diverse, mostly community-based programming using relatively inexpensive and therefore widely accessible broadcasting equipment.

A vast majority of these stations 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—individuals who operate small, low power radio stations of less than 100 watts.  The FCC recently issued rules allowing micro-broadcasters to apply for licensure, but flatly disallows any micro-broadcaster who previously engaged in unlicensed broadcasting, including Neset, from doing so.  But even this limited licensure for new micro-broadcasters is under attack on Capitol Hill.  Legislation that would repeal the FCC’s rules was passed by the U.S. House of Representatives on April 13, 2000, and is currently pending in the U.S. Senate.  Moreover, the federal government continues to bring enforcement actions against micro-broadcasters.

The law in this area is highly unsettled.  While the Eighth Circuit Court of Appeals eventually ruled against Neset, the Sixth Circuit came to the exact opposite conclusion in another micro-radio case.  Senior Circuit Judge Gerald W. Heany cited the Sixth Circuit opinion in his dissent in Neset’s case.

“We will file a petition to the entire Eighth Circuit asking it to rehear the case,” Bullock said.   “The federal government cannot be permitted to continue to suppress speech without the opportunity for micro-broadcasters to even defend themselves.”

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