Reprinted from Reuters
Feb 8 2002 7:09PM

WASHINGTON (Reuters) - A U.S. appeals court Friday struck down as unconstitutional a law that barred an unlicensed radio broadcaster from ever obtaining a license for a low-power FM radio station or being involved with a station.

Following a mandate from Congress, the Federal Communications Commission adopted rules last year that banned anyone who had been a pirate broadcaster or currently was broadcasting illegally from obtaining a license for a new low-power station.

No exceptions to that prohibition were made in the law despite past rules that allowed past pirate broadcasters to certify under penalty of perjury that they could be trusted to comply with broadcasting rules to obtain a license.

The U.S. Court of Appeals for the District of Columbia ruled Friday that, despite attempts to limit pirate broadcasters from receiving licenses, the FCC's rules were "poorly aimed at maximizing future compliance with broadcast laws and regulations."

Despite the ruling, the FCC still has the authority on a case by case basis to deny a license to a pirate broadcaster.

The FCC began accepting applications in 1999 for low-power FM stations of 10 watts and 100 watts and can reach 3.5 miles but Congress, pushed by the larger broadcasters like National Public Radio, passed legislation that limited frequencies available for the new licensees.

Greg Ruggiero, a former pirate broadcaster in New York City and elsewhere, challenged the FCC's rules because he was approached to be on the board of directors of a South Carolina low power station.

"We cannot sanction an automatic and permanent restriction on unlicensed broadcasters' future lawful speech without understanding why their misdeeds warrant a penalty so much more severe than that applied to any other misconduct," the appeals court said in a 2-1 decision written by Judge David Tatel.

The FCC had no immediate comment. The court vacated the law and remanded the issue back to the agency for further proceedings.

"These small stations served many different communities across the nation, and gave those whose interests and concerns were not represented on the airwaves, a chance to reach out," said Barbara Olshansky, an attorney for the Center for Constitutional Rights which brought the case.

"Now they will not be penalized automatically and permanently for airing their opinions and engaging in civil disobedience," she said in a statement.

The justices for the majority decision did acknowledge that the FCC, under existing law and rules, has "authority under its general character qualification provision to deny licenses."

And the court, in a separate case released Friday, upheld a ruling by the FCC that ordered an unlicensed low-power FM station to cease broadcasting.

Reuters/Variety