Free Radio Gainesville's Response to our Notice of Apparent Liability (N.A.L.)
January 4, 1999 Federal Communications Commission Compliance and Information Bureau Legal Services Group Mail Stop 1500E3 1919 M Street N.W. Washington, D.C. 20554 RE: In the Matter of Michael A. Porter; NAL/Acct. No. 915TP0002 To Whom It May Concern:
The following is the response to the Notice of Apparent Liability filed against my client, Michael A. Porter, on December 3, 1998.
As discussed more fully below, our position is that the Notice of Apparent Liability (N.A.L.) is defective in that it fails to comply with the procedures of the Federal Communications Commission (F.C.C.) and is based on unsubstantiated allegations with insufficient evidentiary support. Further, the N.A.L. unreasonably calls for a forfeiture that is grossly disproportionate to the alleged violations. Moreover, the N.A.L. is void because it directly violates Article I, Section 2 of, and the First, Fifth, Sixth, and Fourteenth Amendments to, the Constitution of the United States of America. Finally, the N.A.L. must be rescinded because it violates Article 19 of the United Nations Declaration of Human Rights, Article 19 of the International Covenant On Civil and Political Rights, and Article 13(2) of the American Convention on Human Rights. The United States is a signatory power of these international treaties and is thus obligated to preserve the "freedom...to seek, receive and impart information through any media and regardless of frontiers". Based on these gross deficiencies, we respectfully submit that the N.A.L. must be rescinded.
I. The F.C.C. Has Failed To Comply With Its Own Procedures.
Mr. Porter is a non-licensee and a non-applicant who, under 47 U.S.C. § 503(b)(5) and 47 C.F.R. § 1.80(d), was entitled to receive a warning prior to the issuance of the forfeiture. Although there is an exception to these warning requirements for persons "engaging in activities for which a license...is required" (47 U.S.C. § 503(b)(5); 47 C.F.R. § 1.80(d)), the allegations in the N.A.L. concern an activity for which no license can be obtained. Under 47 C.F.R. §§ 73.211(a), 73.511(a), and 73.512(c), the F.C.C. has forbidden the issuance of all licenses for broadcast stations operating at a power level of less than 100 watts with an approximate reception area of between two and twelve miles radius from the point of transmission. As the court explained in United States v. Strawcutter, 19 F.Supp.2d 738, 742 (E.D. Mich. 1998), these regulations "effectively eliminat[e]" the licensing of "all micro broadcast transmissions". Since there is absolutely no licensing procedure for Micro Radio broadcasters, the F.C.C. cannot argue that that Mr. Porter falls within any exception to the citation and "opportunity for meeting" requirements of 47 U.S.C. § 503(b)(5) and 47 C.F.R. § 1.80(d).
Accordingly, prior to issuing the N.A.L., the F.C.C. was required to send Mr. Porter a citation providing notice of the charged violations. See 47 U.S.C. § 503(b)(5); 47 C.F.R. § 180(d). The F.C.C. was also required to provide Mr. Porter with a reasonable opportunity for a personal interview with F.C.C. officials regarding these alleged violations. See id. The F.C.C. failed to comply with both of these requirements. These violations of the F.C.C.'s own rules constitutes grounds for rescinding the forfeiture.
II. The Forfeiture Is Based Upon Unsubstantiated Allegations With Insufficient Evidentiary Support
The F.C.C. has failed to present a prima facie case that Mr. Porter is in violation of the F.C.C. rules. The facts presented in the N.A.L. do not prove that the allegations contained therein are true, correct, or provide a valid basis for the demand of a forfeiture. Without clear and convincing evidence that Mr. Porter has operated radio equipment without the proper authorization, the F.C.C. may not impose any forfeiture. See, United States v. Strawcutter, 19 F.Supp.2d 738, 743 (E.D. Mich. 1998) (explaining that a prima facie case for forfeiture pursuant to a violation of 47 U.S.C. § 301 includes operation of radio equipment); United States v. Neset, 10 F.Supp.2d 1113, 1114 (D. N.D. 1998) (explaining that making radio transmission is element of violation of 47 U.S.C. § 301).
The N.A.L. presents insufficient evidence that Mr. Porter is the operator of "Free Radio Gainesville". The only indications put forth by the F.C.C. on the N.A.L. to substantiate this allegation is that on August 5, 1998 and October 26, 1998 radio broadcasts were detected on 94.7 Mhz originating from 1316 NW 4th Lane, Apartment 2 in Gainesville, Florida and that those transmissions identified themselves as "Free Radio Gainesville". The only support offered to connect Mr. Porter to these broadcasts is that, at some time before December 3, 1998 my name was indicated on the Gainesville Regional Utility electrical account for 1316 NW 4th Lane Apartment 2 in Gainesville, Florida. The N.A.L. never concludes that the voice broadcasting was Mr. Porter's. The N.A.L. never alleges that Mr. Porter had access to the apartment at 1316 NW 4th Lane on the dates in question or that other persons did not have access on those dates. In fact, the N.A.L.does not bring forth any evidence which demonstrates that the transmissions monitored on August 5 and October 26, 1998 were Mr. Porter's, that Mr. Porter ever operated the equipment, or that Mr. Porter even had access to 1316 NW 4th Lane on those dates. The allegation that Mr. Porter's name was on the utility acount servicing the apartment is not equivalent to evidence of actual possession or control of the premises and certainly does not lead to the conclusion that Mr. Porter operated the equipment. The statutes and FCC regulations do not permit a fine based on vicarious liability.
Moreover, the N.A.L. fails to show that the broadcasts transmitted on June 3, 1998 by a station identifying itself as "Free Radio Gainesville" originated from 1316 NW 4th Lane, Apartment 2 in Gainesville, Florida. Instead, it merely states that these transmissions were detected on 94.7 MHz in Gainesville and that some unidentified "operator" was warned about possible penalties for unlicensed broadcasts. The N.A.L. does not identify this "operator", give his location, or explain if this warning was given in person, telephonically, or by some other means. The only connection between the June 3 broadcast and the later broadcasts is an uncited, unidentified "posting on the internet" (which was read by an agent on August 5, 1998, but, since the N.A.L. fails to cite or identify the source, could have been posted at any prior time) which made reference to the move of the station identifying itself as "Free Radio Gainesville". The N.A.L. never concludes that the voice broadcasting on June 3 was Mr. Porter's nor does it identify Mr. Porter as the "operator" contacted on that day. In fact, the N.A.L. does not bring forth any evidence which demonstrates that the transmissions monitored on June 3 were Mr. Porter's.
The violation alleged in the N.A.L. is the operation of an unlicensed radio station. Establishing the identity of the person operating the radio station is essential to sustaining this forfeiture order. Assuming arguendo that all the evidence presented is true, that evidence fails to show that Mr. Porter am the operator of an unlicensed radio station which allegedly broadcast on June 3, August 5, and October 26, 1998.
The N.A.L. fails to establish a prima facie case of a violation of 47 U.S.C. § 301 or any other provision of, or any rule or regulation promulgated under, the Communications Act of 1934. Therefore, the N.A.L. must be rescinded.
III. The Proposed Forfeiture Amount Is Grossly Disproportionate To The Alleged Violations
A. The N.A.L. fails to establish a willful or repeated violation of any provision of, or any rule or regulation promulgated under, the Communications Act of 1934
Given the nature and extent of the alleged violations, the monetary forfeiture imposed in the N.A.L. is unreasonable and justice requires that it be rescinded. As discussed above, the N.A.L. fails to establish that Mr. Porter willfully violated any telecommunications statute, rule, or regulation. Under 47 C.F.R. § 1.80(a)(2), no forfeiture may be assessed unless a provision of the Communications Act of 1934 has been violated "[w]ilffully or repeatedly". Accord 47 U.S.C. § 503(b)(1)(B). The inability of the N.A.L. to allege facts which could establish a willful or repeated violation renders the proposed forfeiture grossly disproportionate to the alleged violation.
B. The N.A.L. fails to consider all of the mitigating factors under the Communications Act of 1934
Under 47 C.F.R. § 1.80(d) and 47 U.S.C. 503(b)(2)(D), the N.A.L. must address certain enumerated mitigating factors in assessing the forfeiture amount. The N.A.L. fails to address these factors. Specifically, the N.A.L. fails to consider the fact that this violation is alleged to have occurred on only two occasions from 1316 N.W. 4th Lane, Apartment 2. In addition, the N.A.L. does not recognize the fact that Mr. Porter has no previous history of violating FCC regulations. A monetary penalty in this amount is excessive for a "first time offender". Moreover, the N.A.L. fails to consider Mr. Porter's inability to pay this fine. See, Affidavit of Insolvency attached and marked as Exhibit "A". Mr. Porter is a full time student and has been for several years. He has not even earned sufficient income to file a tax return for the last three years. Given Mr. Porter's financial situation, the monetary forfeiture imposed is unreasonable and, in the interests of justice, it should be rescinded. Finally, the N.A.L. does not consider the fact that no licensed radio stations complained of interference nor was there any suggestion of actual harm caused by any broadcast from Radio Free Gainesville.
IV. The Prohibition of Purely Intrastate Micro Radio Broadcasts And the Imposition of a Monetary Forfeiture Exceeds The Federal Government's Regulatory Authority Under Article I, Section 2 of the Constitution of the United States of America
The Communications Act of 1934 was originally enacted to maintain the control of the United States over all the channels of interstate and foreign radio transmissions. This power is arguably in accord with Art. I Sect. 2 of the U.S. constitution, which permits Congress to regulate interstate commerce. While the language of 47 U.S.C. § 301(d) states that the F.C.C. has the authority to regulate even purely intrastate transmissions, the statute must be interpreted and applied in a manner consistent with the constitutional limitations of Congress's power to regulate interstate commerce. Thus, F.C.C. regulation of intrastate transmissions which interfere with, and perhaps those which are capable of interfering with, interstate commerce may be constitutional. However, where, as in the instant N.A.L., there is absolutely no showing that the low-wattage signal allegedly transmitted has in any way interfered, or could possibly interfere, with interstate signals, the F.C.C. is venturing beyond its regulatory authority. An application or interpretation of section 301 which permits such excessive regulation is unconstitutional under the commerce clause. Since the N.A.L. fails to allege any facts that could establish interstate transmission, it must be rescinded as violatitive of the Commerce Clause of Article I, Section 2 of the Constitution of the Unites States of America.
V. The Complete And Absolute Prohibition of Micro Radio Broadcasts And The Imposition Of A Monetary Forfeiture Violates the First Amendment to the Constitution of the United States of America.
A. F.C.C. regulations prohibiting low powered noncommercial educational radio transmissions and the imposition of a monetary forfeiture sweeps too broadly and is not narrowly tailored to further the government's interests in preserving the available radio spectrum and preventing interference
The N.A.L. must be rescinded because it is based on a statutory and regulatory scheme that violates the First Amendment to the Constitution of the United States of America. As the Supreme Court of the United States explained in NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the right of individuals to freedom to speak and express themselves "need[`s] breathing space to survive". Thus, "government may regulate in the area only to with narrow specificity". Id. To maintain the necessary room for citizens to exercise these freedoms, the Supreme Court has repeatedly made clear that the First Amendment will not tolerate a law which does not aim specifically at evils within the permissible area of government control, but rather sweeps within its ambit other activities that constitute an exercise of protected expressive rights.
This constitutional principle fully applies to laws regulating broadcast speech. In keeping with this principle, the Court has stated that restrictions upon the First Amendment freedoms of broadcasters will be upheld "only when...the restriction is narrowly tailored to further a substantial government interest." Federal Communications Commission v. League of Women Voters of California, 468 U.S. 364, 380, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984).
As a preliminary matter, the F.C.C. licensing scheme constitutes an unconstitutional prior restraint under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 649 (1965) on both substantive and procedural grounds. The licensing arrangement is a prior restraint because no micro broadcast is permitted without first obtaining a license. However, the F.C.C. has adopted a policy whereby no license may be obtained for a micro radio station. Thus, such broadcasts are uniformly prohibited and the licensing system is a complete restraint on communication. The licensing scheme does not allow for alternate avenues of communication. Comapre, Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
With respect to the procedural requirements of Freedman, the F.C.C. claims the right to impose a fine and infringe on protected speech without first obtaining judicial confirmation that the speech in question may be restrained. That scheme is unconstitutional under the First Amendment. Furthermore, the licensing system created by the F.C.C. does not require that a licensing decision be made in a specified brief period of time. Freedman, supra; Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994), cert. den. 514 U.S. 1066, 115 S.Ct. 1697 (1995) Again, such a prior restraint would be unconstitutional.
The foremost purpose of requiring radio broadcasters to obtain licenses from the F.C.C. is to prevent interference from other radio broadcasts. The F.C.C. maintains that due to the finite size of the radio spectrum, or "spectrum scarcity", only a limited number of radio frequencies are capable of broadcasting at the same time in the same space without undue interference from neighboring signals. The F.C.C. has argued that this so-called spectrum scarcity somehow justifies the application of a lower level of First Amendment protection for persons utilizing the air-waves as compared to other forums.
The Supreme Court, however, has found the spectrum scarcity rationale to be obsolete given technological developments that have occurred since the doctrine was first articulated. See League of Women Voters, 468 U.S. at 375. In fact, the F.C.C. itself has also found the concept of "spectrum scarcity" to be an improper basis for applying a different constitutional standard to broadcast media than to other forms of media. (In re Syracuse Peace Council, 2 F.C.C. Rcd 5043 (1987)) As the Commission pointed out in Syracuse Peace Council, while it may be true that there are only a finite number of broadcast frequencies, this is no less true of the computers, delivery trucks, ink and newsprint which are used in the production of printed speech:
[W]e simply believe that, in analyzing the appropriate First Amendment standard to be applied to the electronic press, the concept of scarcity -- be it spectrum or numerical-- is irrelevant. As Judge Bork said in Trac v. F.C.C. [801 F.2d at 508], 'Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.'
2 F.C.C. Rcd 5043, 5055.
At one time, the scarcity rationale may have been viewed as a reasonable and sufficient justification for the broad scope of the regulatory scheme; however, with the almost universal criticism of this doctrine, the conclusion is inescapable that the scheme's infringement upon First Amendment freedoms is no longer supportable under such a rationale. The constitutional flaw here is "not simply that [the scheme] includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965-66, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).
In fact, the government's interest in addressing the problem of radio broadcast interference is already secured, to the extent technologically feasible, by a variety of other regulatory means that intrude far less drastically upon the First Amendment freedoms of broadcasters. See League of Women Voters, 412 U.S. at 110. For example, the F.C.C. has promulgated extensive operating rules for broadcasters that are intended to address the specific problems of overlapping contours and broadcast interference. See 47 C.F.R. §§ 73.1 et seq. Moreover, there can be no doubt that the F.C.C.'s articulated objectives could be achieved through significantly less speech-intrusive means than those employed in the current licensing scheme. See, Martin v. City of Struthers, 319 U.S. 141, 148, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State of New Jersey, 308 U.S. 147, 162, 60 S.Ct. 146, 84 L.Ed. 155 (1939). For example, the asserted government objective could be met by a first-come, first-serve registration system. Such a system would circumvent the dangers attendant to administrative licensing, and could be designed to ensure adequate spectrum space between assigned broadcast frequencies in relevant geographic areas so as to ensure no interference occurs.
As the F.C.C. has explained:
[The] First Amendment was adopted to protect the people not from journalists, but from the government. It gives people the right to receive ideas that are unfettered by government interference. We fail to see how this right changes when individuals choose to receive ideas from the electronic media instead of the print media. There is no doubt that the electronic media is powerful and that broadcasters can abuse their freedom of speech. But the framers of the Constitution believed that the potential for abuse of private freedoms posed far less a threat to democracy than the potential for abuse by a government given the power to control the press.
Id. at 5057.
An examination of the fit between the government interest in regulating this form of speech and expression and the scope of the regulatory framework reveals that these regulations at issue are neither narrowly tailored nor sufficiently pressing to warrant the broad suppression of broadcasters' First Amendment rights. In an effort to address very specific technological issues, the current F.C.C. regulatory scheme has too wide a net which impermissibly restrains an immeasurable amount of expressive activity. Where the asserted legislative or administrative purpose is a legitimate, or even substantial, government interest, "that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (footnotes omitted).
B. F.C.C. prohibition against low powered noncommercial educational radio transmissions and the imposition of a monetary forfeiture violates the First Amendment Rights of listeners from receiving valuable information
The people of the United States have a constitutionally protected interest in free speech by means of radio and other forms of broadcast media. Metro Broadcasting, Inc., v. F.C.C., 497 U.S. 547, , 110 S.Ct. 2997, 111 L.Ed. 2d 445 (1990) stands for the premise that the rights of the listeners and viewers are paramount to the interests of the broadcasters. Given the Supreme Court's recognition of the supremacy of these public rights, the F.C.C.'s assertion of an, at best, remote, and as yet undocumented possibility that micro radio may interfere with the broadcasts of licensed, commercial stations is simply inadequate to overcome the right of radio listeners to receive the broad variety of view-points, perspectives, and programming formats which micro radio offers. The advent of micro radio not only gives radio listeners a low-cost alternative to the perspectives presented on mainstream, commercial radio, but it furthermore allows members of the public the opportunity to participate and present their own personal and local community interests in a direct and effective way, making the public airwaves truly public for the first time.
It is clear that the F.C.C. must ensure that their regulations provide micro radio broadcasters and their listeners the same constitutional protections that have been established for more traditional means of expression. The F.C.C. is constitutionally required to develop a regulatory procedure appropriate to this media rather than simply creating and enforcing a complete and absolute prohibition of micro radio. This current policy constitutes an overly broad restraint of free speech in violation of the First Amendment. Therefore, this N.A.L. must be rescinded.
VI. The Forfeiture Imposed In This Case Violates Due Process And Equal Protection of the Laws
A. The forfeiture violates the right to counsel as embodied in Fifth and Sixth Amendments to the Constitution of the United States of America
The N.A.L. must be rescinded because it violates the Fifth and Sixth Amendments. As a preliminary matter, it should be noted that Mr. Porter faces a huge forfeiture penalty and possible criminal sanctions if he is found to be in violation of 47 U.S.C. § 301. Mr. Porter should have the right to appointed counsel, for both the civil and criminal enforcement of the Act. Federal and state courts provide counsel for indigent persons who cannot afford to retain competent legal representation. In the extremely specialized area of telecommunications law, even if competent counsel could be found, their fees place their services well beyond the reach of the average person. It is a violation of Due Process and of the Fifth and Sixth Amendment rights to effective assistance of counsel for the F.C.C. to levy a $6,000 forfeiture against Mr. Porter without the appointment of a competent attorney. This is especially true, given that the law provides criminal sanctions for the very violations of which Mr. Porter stands accused. 47 U.S.C. § 501.
B. The forfeiture imposed violates the right to Due Process as embodied in the Fifth Amendment to the Constitution of the United States of America
The F.C.C. administrative review provisions did not provide an opportunity for Mr. Porter to meet with the F.C.C. or to present his case to the full Commission prior to the institution of this excessive forfeiture. It is a violation of Due Process, as guaranteed in the Fifth Amendment to the Constitution of the United States of America, to subject Mr. Porter to a $6,000 forfeiture without a hearing or an opportunity to remedy his alleged violation of Section 301 of the Communications Act in a manner that conforms to F.C.C. regulations.
Further, it is a violation of Due Process for the Commission to selectively initiate forfeiture proceedings against Mr. Porter because of the political content and nature of the alleged broadcasts. The F.C.C. is targeting alleged micro-radio broadcasters because they are perceived as a challenge to the F.C.C.'s regulatory authority, rather than in response to any real threat of actual interference with licensed transmissions. Therefore, the N.A.L. must be rescinded.
VII. The F.C.C.'s Complete And Absolute Prohibition of Micro Radio Broadcasting And The Imposition Of A Monetary Forfeiture Violates Micro Radio Broadcasters And Their Listeners' Right to Communicate Under The United Nations Declaration Of Human Rights, The International Covenant On Civil And Political Rights, And The American Convention on Human Rights
Article 19 of the United Nations Declaration Of Human Rights and the parallel Article 19 of the International Covenant On Civil And Political Rights state: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information through any media and regardless of frontiers."
These international treaties promote recognition of the right to expression and information as a universal human right guaranteed by international law. The treaties expressly forbid undue restraints on freedom of expression, and require the government to establish, and substantiate if necessary, its justification for restrictions placed upon its citizens' right of free expression. (United Nations Human Rights Committee, Communication No. 11/1977, paragraph 17). Similarly, Article 13(2) of the American Convention on Human Rights requires that any governmental "restrictions imposed. . . on freedom of expression depend upon a showing that the restrictions are required by a compelling state interest," and that if there exist "various options to achieve this objective, that which least restricts the right protected must be selected." (Advisory Opinion of the Inter-American Court, 13 November 1985, 8 EHRR 165).
As signatory to these international treaties, the United States government has a responsibility to conform its regulation of the electronic broadcast media to the treaties' requirements. The complete and absolute prohibition of low-power micro radio broadcasting, wherein no aspiring broadcaster can obtain a license or F.C.C. permission under any circumstances whatsoever, is a blatant violation of this most fundamental of internationally recognized human rights.
The N.A.L. filed against Michael A. Porter must be rescinded due to numerous gross and flagrant violations of F.C.C. procedure, the Constitution of the United States of America, and international law. In sum, the N.A.L. is defective in that it:
(1) fails to follow F.C.C. procedures for implementing a monetary forfeiture;
(2) fails to establish a prima facie violation;
(3) unreasonably calculates a monetary forfeiture that is disproportionate to the alleged violations;
(4) directly violates the First, Fifth, Sixth, and Fourteenth Amendments to, the Constitution of the United States of America;
(5) directly violates international treaties to which the United States is a signatory power. Specifically, it violates Article 19 of the United Nations Declaration of Human Rights, Article 19 of the International Covenant On Civil and Political Rights, and Article 13(2) of the American Convention on Human Rights.
For the foregoing reasons, we respectfully submit that this N.A.L. must be rescinded. Thank you for your consideration. Sincerely, Gary S. Edinger Florida Bar No.: 0606812 305 N.E. 1st Street Gainesville, Florida 32601 (352) 338-4440 337-0696 (Fax) Attorney for Michael A. Porter
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