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U.S. Court of Appeals for the D.C. circuit rules unconstitutional ban on unlicensed broadcasters

The U.S. Court of Appeals for the D.C. Circuit overturned as unconstitutional the part of the Radio Preservation Act that prohibited all former unlicensed broadcasters from applying for low power radio stations.

Q and A on the February 8, 2002 LPFM court decision

Q. Where can I read find a copy of the decision?

A. It can be found on the U.S. Court of Appeals for the D.C. circuit website.

Q. Which law was under consideration?

A. The Radio Preservation Act, the Act that Congress passed at the end of 2000, (Pub. L. 106-553) which limited the number of low power radio stations available. But, the court was not considering the part of the law that limited the total number of stations available. This law also prohibited anyone who had ever broadcast without a license from applying for a low power radio station.

Q. Will applicants be able to apply for stations on third adjacent channels because of the decision?

A. No. This decision only considered whether former unlicensed broadcasters (also known as pirates) could apply for low power radio stations.

Q. Does this mean all former unlicensed broadcasters (or pirates) can apply for low power radio stations?

A. Not exactly. The Court approved of the FCC's previous policy, which limited applications to only those who stopped broadcasting when asked, or stopped broadcasting by a certain date. The FCC will likely readopt a similar rule.

Applicants from window one who were dismissed because they could answer yes to Section III, Question 8(a) on the application should be reinstated. It is unclear what will happen for applicants who did not apply in windows 3, 4, and 5 because the legislation barred them from applying, even though they could answer yes to Question 8(a). It is possible the FCC will open a new filing window. Keep checking the FCC web site and other LPFM web sites for more information.

Q. I heard the court mistakenly overturned the whole act, not just the part about unlicensed broadcasting, is this true?

A. When the court drafted its ordering clause, it was a little broad. This is likely just an error that the court overlooked. The FCC will probably seek clarification that the Court only overturned the unlicensed broadcasting parts, not the rest of the Radio Preservation Act, and the court will certainly agree. Nothing in the argument below or in the court's decision discussed the interference portions of the Act.

Q. Who brought this litigation?

A. Greg Ruggerio, a former unlicensed broadcaster. He was represented by Rober T. Perry at the Center for Constitutional Rights.

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