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Radio v. Federal Communications Commission

FCC's ban on low-power FM broadcasts did not unconstitutionally infringe unlicensed microbroadcaster's First Amendment rights; FCC had no obligation to consider individual circumstances of broadcaster's operation before enforcing ban.

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Argued September 13, 2001

Appeal from and Petition for Review of an Order of the Federal Communications Commission

An unlicensed operator of a lowpower FM radio station challenges a Federal Communications Commission order directing him to cease broadcasting. He contends the order and an ancillary $11,000 forfeiture are unenforceable because the Commission’s ban on low-power FM stations, in place until January 2000, contravened the Communications Act of 1934 and the First Amendment, and because the forfeiture is unreasonable, excessive, and beyond his ability to pay. We reject these claims and affirm. Absent a demonstration that the low-power ban was indisputably unlawful or unconstitutional, the Commission had no obligation to reconsider the ban in the context of an enforcement proceeding against a single unlicensed operator. Moreover, the forfeiture is reasonable under the circumstances of this case, and the operator waived his inability-to-pay claim.

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