What to Do When the FCC Comes Knocking

by Stephen Dunifer

Confronting the FCC and Defending Your Micropower Station From Being Shut Down

www.freeradio.org

Everything is going great with your micropower station, and then comes that knock on the door -an FCC agent or two demanding to inspect your station. What do you do ?

In response to this Free Radio Berkeley IRATE has prepared this legal defense packet to answer that question and prepare you for that dreaded knock.

A number of stations have merely folded their tent and gone silent in response to the first visit or letter from the FCC. This is a result of folks not knowing their rights and responding from a position of fear not strength. When you know your rights, prepare ahead of time, and respond in a proactive manner you will assure the continued operation of your station for months if not years after the first FCC visit.

First, the FCC will does not do very well when it comes to public relations. Its agents are not trained to deal with the media. Anything you can do to put them in the media spotlight will usually be to your advantage. Every time the FCC makes a move against your station send a press release to the media. In this release succinctly state your case and frame it as a First Amendment issue. Highlight the ever increasing concentration of media resources into fewer and fewer hands and how this prevents all but the wealthy and powerful from having a voice.

Be certain that everyone associated with the station knows their rights and won’t freak out at the presence of the FCC. Included in this packet is “What to do when the FCC Knocks”. Make copies of this for everyone to read and keep. Post it in your studio. Before you even begin broadcasting find an attorney who will be on call if you need legal assistance. No one should use their real name on the air or identify themselves to the FCC. Without any legal names it is much more difficult for the FCC to proceed legally.

Usually the course of events is as follows. You will receive a letter from the FCC taking notice of your operation.

Sometimes the letter will be presented as part of their visit to your station. This letter will state that if your persist in unlicensed operations you will be subject to possible fines or jail. In order to either collect a fine or begin criminal proceedings the FCC has to present their case to a Federal court. Despite fines being assessed against a number of people they have yet to go to court in order to collect the fines since this would open their process to possible Constitutional scrutiny. Likewise for the criminal proceedings as well. So far there have only been only one or two instances of actual criminal prosecution.

It is important to defend your station in a militant manner. Included in this packet is the “Pledge of Resistance Form”. As a Free Speech voice your station should be serving the community in such a manner that your listeners feel it is a valuable resource worth defending. Circulate this pledge and get as many signers as possible. When you have gotten at least 100-200 signers send out a press release stating that x number of people have agreed to physically defend the station, include a copy of the form. This will put the FCC on notice that they will not have easy job. Building a sense of solidarity and creating a strong alliance with your community is very important.

Threats and intimidation are the FCC’s main means of shutting down stations. If those tactics fail they may obtain a seizure order from a Federal judge. This is done in a secret hearing without any opposing counsel representing your station being present. With such an order the FCC can literally bust down the door if necessary with Federal Marshals and take your equipment.

In order to counter that threat the National Lawyers Guild Committee on Democratic Communications has crafted the legal documents that will be required by your attorney to file suit against the FCC in an attempt to prevent the possible seizure of your equipment. This legal action challenges the Constitutionality of the FCC’s seizure authority. Once you receive your first letter from the FCC you have legal standing to file suit in Federal District Court. It is important that as many micropower stations as possible do this.

First, if accepted by the court, it will take months and months for the wheels of justice to turn -it took the FCC 4 years to finally get an injunction against Free Radio Berkeley. Secondly, it will tie up the legal resources of the FCC which is a rather small agency which must take up the time of an attorney from the local Federal Attorneys office every time they engage in a new legal case. Imagine the consequences from the FCC having to respond to dozens of these suits being filed.

Winning your suit knocks out the immediate seizure authority and forces the FCC to go through a series of administrative procedures before any further legal action can be undertaken. Even not winning buys months of time. And, of course, you can appeal your case to the Federal Appeals Court adding many more months to the process.

Taken as a whole strategy these steps will greatly increase not only the survivability of your station but will also do much to further strengthen the micropower broadcasting movement. For further information check the following web sites: freeradio.org -nlgcdc.org -radio4all.org -368hayes.com. Contact Free Radio Berkeley IRATE (International Radio Action Training Education) directly if you any have any questions: [email protected] or 510-549-0732.

Stephen Dunifer - Free Radio Berkeley IRATE 1442 A Walnut St., PMB 406 Berkeley, CA 94709

Micropower Broadcasting Free Speech Pledge of Resistance

In defense of the Free Speech rights of micropower broadcasting, I pledge to, in a non-violent manner, use my body to block any effort by any agency to shut down a micropower broadcast station within my community. I understand that I may risk arrest and subsequent legal consequence for my defense of Free Speech Rights.

Signed: __________________

Name:

Address:

Phone:

Email:

WHAT TO DO WHEN THE FCC KNOCKS ON YOUR DOOR

Produced by the Committee on Democratic Communications — A National Committee of the National Lawyers Guild

NOTE: The following discussion assumes that you are not a licensed broadcaster.

Q) If FCC agents knock on my door and say they want to talk with me, do I have to answer their questions?

A: No. You have a right to say that you want a lawyer present when and if you speak with them, and that if they will give you their names, you will be back in touch with them. Unless you have been licensed to broadcast, the FCC has no right to "inspect" your home.

Q) If they say they have a right to enter my house without a warrant to see if I have broadcasting equipment, do I have to let them in?

A: No. Under Section 303( n) of Title 47 U. S. C., the FCC has a right to inspect any transmitting devices that must be licensed under the Act. Nonetheless, they must have permission to enter your home, or some other basis for entering beyond their mere supervisorial powers. With proper notice, they do have a right to inspect your communications devices. If they have given you notice of a pending investigation, contact a lawyer immediately.

Q) If they have evidence that I am "illegally" broadcasting from my home, can they enter anyway, even without a warrant or without my permission?

A: They will have to go to court to obtain a warrant to enter your home. But, if they have probable cause to believe you are currently engaging in illegal activities of any sort, they, with the assistance of the local police, can enter your home without a warrant to prevent those activities from continuing. Basically, they need either a warrant, or probable cause to believe a crime is going on at the time they are entering your home.

Q) If I do not cooperate with their investigation, and they threaten to arrest me, or have me arrested, should I cooperate with them?

A: If they have a legal basis for arresting you, it is very likely that they will prosecute you regardless of what you say. Therefore, what you say will only assist them in making a stronger case against you. Do not speak to them without a lawyer there.

Q) If they have an arrest or a search warrant, should I let them in my house?

A: Yes. Give them your name and address, and tell them that you want to have your lawyer contacted immediately before you answer any more questions. If you are arrested, you have a right to make several telephone calls within 3 hours of booking.

Q) Other than an FCC fine for engaging in illegal transmissions, what other risks do I take in engaging in micro-radio broadcasts. A: Section 501 of the Act provides that violations of the Act can result in the imposition of a $10,000 fine or by imprisonment for a term not exceeding one year, or both. A second conviction results in a potentially longer sentence. If you are prosecuted under this section of the Act, and you are indigent (unable to hire an attorney), the court will have to appoint one for you.

Q) Are there any other penalties that can be imposed upon me for "illegal broadcasts."

A: Under Section 510 of the Act, the FCC can attempt to have your communicating equipment seized and forfeited for violation of the requirements set forth in the Act. Once again, if they attempt to do this, you will be given notice of action against you, and have an opportunity to appear in court to fight the FCC's proposed action. Realize, though, that they will try to keep your equipment and any other property they can justify retaining until the proceedings are completed.

You have a right to seek return of your property from the court at any time.

Q) If the FCC agents ask me if I knew I was engaged in illegal activities, should I deny any knowledge of FCC laws or any illegal activities?

A: No. You will have plenty of time to answer their accusations after you have spoken with an attorney. It is a separate crime to lie to law enforcement officials about material facts. Remain silent.

Q) If I am considering broadcasting over micro-radio, is there anything I can do ahead of time to minimize the liklihood of prosecution?

A: Yes. Speak with an attorney before you are approached by law enforcement to discuss the different aspects of FCC law. Arrange ahead of time for someone to represent you when and if the situation arises, so that you will already have prepared a strategy of defense.

Q) What can I do if the FCC agents try to harass me by going to my landlord, or some other source to apply pressure on me?

A: So long as there is no proof that you have violated the law, you cannot be prosecuted or evicted. If there is evidence of misconduct, you might have to defend yourself in court. Depending upon what the FCC said or did, you might be able to raise a defense involving selective prosecution or other equivalent argument. If the conduct of the agents is clearly harassment, rather than a proper investigation, you can file a complaint with the F. C. C. or possibly a civil action against them.

Q) If I want to legally pursue FCC licensing for a new FM station, what should I do?

A: It isn't the purpose of this Q and A sheet to advocate or discourage non-licensed broadcast operations. A person cited by the FCC for illegal broadcasting will find it virtually impossible to later obtain permission to get a license. If you want to pursue the licensing procedure, see the procedures set forth in the Code of Federal Regulations, Title 47, Part 73. The application form (Form # 301 A) is extremely complicated, and requires a filing fee of $2,030.00. If you want to contact the FCC directly, call them at their Consumer Assistance and Small Business Division, Room 254, 1919 N St. NW, Washington, D. C. 20554, tel (202) 632-7260. Don't bother to try this without significant financial backing.

www.freeradio.org