This reply brief was filed in July 1999 on behalf of the respondent in the FCC's microradio enforcement proceeding, with cooperating attorneys Luke Hiken and Stephen Paul Dunifer. It addresses arguments raised by the FCC and commercial broadcast industry regarding the legality and constitutionality of low-power broadcasting operations.
Free Radio Berkeley began operating in 1993 at approximately 25 watts without an FCC license. The FCC moved to revoke the operation, and the respondent challenged the enforcement action on First Amendment grounds. The resulting litigation became the central test case for the microradio movement in the United States.
The case raised foundational questions about the FCC's authority to suppress low-power broadcasting when its licensing rules operated to exclude community voices from the public airwaves.
1. The Scarcity Rationale Cannot Justify Exclusion of Community Voices. The FCC has historically justified content regulation in broadcasting by reference to the finite nature of the spectrum. But where scarcity is used to exclude community organizations rather than to advance diverse programming, the constitutional justification is undermined.
2. FCC Part 15 Power Rules Are Not Constitutionally Compelled. The FCC's limits on unlicensed transmitter power are a regulatory choice, not a physical or constitutional necessity. Where those rules operate to silence voices that lack access to the licensing process, they raise First Amendment concerns.
3. Enforcement Discretion and Equal Protection. The selective enforcement of FCC power rules against community broadcasters while commercial violations go unaddressed raises equal protection concerns. Our brief documented the disparity in FCC enforcement priorities.
In January 2000, the FCC established the Low Power FM service, acknowledging the demonstrated demand for community broadcasting access. The LPFM decision, while it did not vindicate unlicensed operation, represented a significant policy victory for community radio advocates.
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