ABBREVIATED TABLE OF CONTENTS STATEMENT OF FACTS 1 OVERVIEW OF STATUTORY FRAMEWORK 8 ARGUMENT 15 I. FCC JURISDICTION UNDER THE COMMERCE CLAUSE 15 II. THE RIGHT TO COMMUNICATE AND THE FIRST AMENDMENT 22 III. THE COMMISSION'S PROHIBITION ON LICENSING OF LOW POWER FM MICRO RADIO BROADCASTS, AS APPLIED, CONSTITUTES A FORM OF PRIOR RESTRAINT AND THEREFORE IS AN UNCONSTITUTIONAL ABRIDGEMENT OF FIRST AMENDMENT PROTECTIONS. 54 IV. THE GOVERNMENT SHOULD BE ESTOPPED FROM PROHIBITING BLACK LIBERATION RADIO'S BROADCASTS IN THAT THESE BROADCASTS HAVE BEEN TACITLY PERMITTED BY THE GOVERNMENT SINCE APRIL 1989. 63 V. FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM ARE UNCONSTITUTIONAL; THEREFORE FCC ACTIONS TAKEN PURSUANT TO § 308(B) OF THE COMMUNICATIONS ACT WHICH EXCLUDE THE POOR ARE UNCONSTITUTIONAL ON THEIR FACE. 64 VI. WHERE UNUSED SPECTRUM SPACE EXISTS, FCC RULES WHICH EXCLUDE A BROADCASTER WITHOUT FUNDS ARE UNCONSTITUTIONAL IN THAT THEY ARE NEITHER NARROWLY DRAWN NOR GROUNDED IN A COMPELLING GOVERNMENTAL INTEREST. 70 VII. THE CIVIL RIGHTS OF RACIAL AND ETHNIC MINORITIES IN THE UNITED STATES ARE UNCONSTITUTIONALLY VIOLATED BY FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM PURSUANT TO SECTION 308(B) OF THE COMMUNICATIONS ACT. IN PARTICULAR, BECAUSE THEY ARE PART OF HISTORICAL PATTERNS AND PRACTICES OF THE FCC WHICH DISCRIMINATE AGAINST MINORITIES. 73 VIII INTERNATIONAL LAW, AND IN PARTICULAR, THE U.N. DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, PROHIBIT THE COMMISSION'S INTERFERENCE WITH MBANNA KANTAKO'S MICRO RADIO BROADCASTS, WHICH VIOLATES THE RIGHT TO COMMUNICATE OF KANTAKO AND HIS COMMUNITY. .. 98 STANDING 116 CONCLUSION 117 APPENDIX 1 118 TABLE OF CONTENTS STATEMENT OF FACTS 1 OVERVIEW OF STATUTORY FRAMEWORK 8 ARGUMENT 15 I. FCC JURISDICTION UNDER THE COMMERCE CLAUSE 15 A. THE FCC HAS NO AUTHORITY TO REGULATE LOW POWER FM BROADCASTS WHICH 1) DO NOT EXTEND BEYOND STATE BORDERS OR WHICH 2) DO NOT INTERFERE WITH OTHER BROADCASTS THAT EXTEND BEYOND STATE BORDERS. 15 II. THE RIGHT TO COMMUNICATE AND THE FIRST AMENDMENT 22 A. THE FIRST AMENDMENT AND THE DEMOCRATIC PROCESS - THE PURPOSE OF THE FIRST AMENDMENT IS TO PROTECT THE DEMOCRATIC PROCESS BY ALLOWING FOR A) AN INFORMED PUBLIC; B) EXCHANGE OF UNPOPULAR AND UNORTHODOX OPINIONS ALONG WITH REGULAR COMMERCE; AND C) BROAD DIALOGUE AMONG THE POPULACE; FIRST AMENDMENT RIGHTS ARE THE RIGHTS OF THE HEARERS AS WELL AS THE COMMUNICATORS. 22 B. 47 CFR § 73.506 OF THE TELECOMMUNICATIONS ACT IS UNCONSTITUTIONAL ON ITS FACE: BLANKET REFUSAL TO LICENSE OR OTHERWISE PERMIT VERY LOW POWER RADIO BROADCASTS IS, ON ITS FACE, AN UNCONSTITUTIONAL VIOLATION OF 1ST AMENDMENT RIGHTS. 23 C. THE FM PORTION OF THE SPECTRUM IS A FIRST AMENDMENT FORUM: HAVING OPENED THE FORUM TO 1ST AMENDMENT ACTIVITY, THE GOVERNMENT MUST APPLY 1ST AMENDMENT STANDARDS TO ITS USE. 26 D. EVEN IF THE AIRWAVES ARE TREATED AS A DESIGNATED PUBLIC FORUM, PROHIBITION OF LOW POWER MICRO RADIO BROADCASTS DOES NOT SATISFY A COMPELLING GOVERNMENT INTEREST, NOR IS SUCH A PROHIBITION NARROWLY TAILORED TO MEET THAT INTEREST. 33 E. EVEN IF THE AIRWAVES ARE TREATED AS A NON-PUBLIC FORUM, PROHIBITION OF LOW POWER MICRO RADIO BROADCASTS IS UNCONSTITUTIONAL INASMUCH AS NO RATIONAL BASIS EXISTS FOR THE ELIMINATION OF SUCH BROADCASTS FROM THE AIRWAVES. THEREFORE, 47 CFR § 73.506 WHICH PROHIBITS ALL LICENSED FM BROADCASTS AT LESS THAN 100 WATTS IS UNCONSTITUTIONAL ON ITS FACE AS AN UNREASONABLE EXERCISE OF AUTHORITY BY THE COMMISSION, IN THAT IT IS ARBITRARY AND CAPRICIOUS. 36 F. MICRO RADIO BROADCASTS MUST BE DISTINGUISHED FROM OTHER UNLICENSED BROADCASTS INVOLVING HIGH POWER TRANSMISSIONS WHICH THE COMMISSION SEEKS TO PROHIBIT. 46 G. EVEN IF THE FCC MAY HAVE AUTHORITY TO SANCTION UNLICENSED 1 WATT RADIO BROADCASTS WHICH SUBSTANTIALLY INTERFERE OR ARE LIKELY TO INTERFERE WITH INTERSTATE BROADCASTS, ANY ORDERS TO CEASE AND DESIST ISSUED BY THE COMMISSION WITH RESPECT TO BLACK LIBERATION RADIO PURSUANT TO § 312(b) OF THE COMMUNICATIONS ACT ARE UNCONSTITUTIONAL AS AN ABUSE OF DISCRETION WHERE THESE 1 WATT BROADCASTS SERVE A NEGLECTED COMMUNITY AND OTHER REGULATORY ALTERNATIVES ARE AVAILABLE TO THE COMMISSION. 48 III. THE COMMISSION'S PROHIBITION ON LICENSING OF LOW POWER FM MICRO RADIO BROADCASTS, AS APPLIED, CONSTITUTES A FORM OF PRIOR RESTRAINT AND THEREFORE IS AN UNCONSTITUTIONAL ABRIDGEMENT OF FIRST AMENDMENT PROTECTIONS. 54 IV. THE GOVERNMENT SHOULD BE ESTOPPED FROM PROHIBITING BLACK LIBERATION RADIO'S BROADCASTS IN THAT THESE BROADCASTS HAVE BEEN TACITLY PERMITTED BY THE GOVERNMENT SINCE APRIL 1989. 63 V. FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM ARE UNCONSTITUTIONAL; THEREFORE FCC ACTIONS TAKEN PURSUANT TO § 308(B) OF THE COMMUNICATIONS ACT WHICH EXCLUDE THE POOR ARE UNCONSTITUTIONAL ON THEIR FACE. 64 VI. WHERE UNUSED SPECTRUM SPACE EXISTS, FCC RULES WHICH EXCLUDE A BROADCASTER WITHOUT FUNDS ARE UNCONSTITUTIONAL IN THAT THEY ARE NEITHER NARROWLY DRAWN NOR GROUNDED IN A COMPELLING GOVERNMENTAL INTEREST. 70 VII. THE CIVIL RIGHTS OF RACIAL AND ETHNIC MINORITIES IN THE UNITED STATES ARE UNCONSTITUTIONALLY VIOLATED BY FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM PURSUANT TO SECTION 308(B) OF THE COMMUNICATIONS ACT. IN PARTICULAR, BECAUSE THEY ARE PART OF HISTORICAL PATTERNS AND PRACTICES OF THE FCC WHICH DISCRIMINATE AGAINST MINORITIES. 73 A. FCC AND RACISM IN BROADCAST REGULATION 74 B. CURRENT FCC POLICY REGARDING MINORITIES, BROADCASTING AND DIVERSITY IN PROGRAMMING. 79 1. DEREGULATION OF BROADCASTING 83 a. ELIMINATION OF REQUIREMENTS REGARDING FORMAL ASCERTAINMENT OF COMMUNITY NEEDS 85 b. ELIMINATION OF LONG-FORM LICENSE RENEWAL 86 c. ELIMINATION OF THE FAIRNESS DOCTRINE 86 2. INCREASE IN CORPORATE OWNERSHIP LIMITS OF AM AND FM COMMERCIAL RADIO 87 3. ELIMINATION OF THE MINORITY OWNERSHIP INCENTIVE RULE. 90 4. ELIMINATION OF DUOPOLY RULE 91 VIII INTERNATIONAL LAW, AND IN PARTICULAR, THE U.N. DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, PROHIBIT THE COMMISSION'S INTERFERENCE WITH MBANNA KANTAKO'S MICRO RADIO BROADCASTS, WHICH VIOLATES THE RIGHT TO COMMUNICATE OF KANTAKO AND HIS COMMUNITY.. 98 A. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: ARTICLE 19 99 B. AMERICAN CONVENTION ON HUMAN RIGHTS: ARTICLE 13 101 C. EUROPEAN CONVENTION ON HUMAN RIGHTS: ARTICLE 10 105 D. CONCLUSION 114 STANDING 116 CONCLUSION 117 APPENDIX 1 118 STATEMENT OF FACTS Mbanna Kantako, a legally blind African American citizen of the United States, is a resident of the John Hay Homes public housing project in Springfield, Illinois. On November 23, 1988, he began broadcasting community-oriented radio programs over a one-watt FM radio station from his apartment with the aid of two "black boxes" which he purchased from a catalogue for $600.00. The station was initially named "WTRA." The name was subsequently changed to "Zoom Black Magic" radio, and changed again to "Black Liberation Radio" following events outlined in this brief. WTRA was founded following Kantako's introduction to Mike Townsend, professor of social work at nearby Sangamon State University in the summer of 1985. The two met at a meeting addressing issues facing the tenant's Residents Council within the John Hay Homes. Townsend's presentation led to the subsequent formation of an organization called the Tenants Rights Association (TRA). This community group was initially successful in persuading the Springfield School Department to provide neccessary bus service to school children living in the John Hay Homes. However, a subsequent voting rights dispute convinced Kantako that the commercial broadcast media of Springfield were unable to reach that city's minority community. Kantako realized that the local media were unresponsive to cultural, political and news issues in the black community, and felt a need to respond. Rather than starting a local newspaper, Kantako's blindness and past experience as a disk jockey convinced him that he should start a radio station. Kantako believed that newspapers are rapidly becoming an obsolete medium of communications. In addition, Kantako felt that a radio station was more likely to reach African American men, who suffer a disproportionately low literacy rate. However, Kantako never obtained a broadcasting license since no FCC licensing provision exists for stations operating at less than one hundred watts. The estimated start-up cost of a one-hundred watt station is in excess of $50,000. Mbanna Kantako, a 32 year old low-income public housing resident could not afford the prohibitive cost of such a venture. WTRA began broadcasting in November 1988 at 107.1 MHz. Kantako's broadcasts could be received within a mile and a half of the transmitter by a population of approximately 2,0000 people, with 1,500 living in the John Hay Homes of Springfield, Illinois. The population of the John Hay Homes is 98% African American. The surrounding area is approximately 75% African American and 25% white. Until Kantako's station went on the air, no Black owned or Black run stations existed in Springfield. As a result, WTRA/Black Liberation Radio began broadcasting community information and music unavailable anywhere else in Springfield. In a given week, Kantako broadcasts the voices of anywhere from 20 to 50 persons from the community. This programming has included interviews with authors, scholars and activists around the country concerned about black genocide; lots of politically conscious rap and reggae music (no sexist or materialistic stuff); discussions and commentary (from a critical perspective) on local and national events effecting the Black community; interviews with victims of police misconduct and abuse; criticism of the NAACP and Urban League for being co-opted and irrelevant to current conditions in Black America; anti-drug messages recognizing the drug plague as a method of social control of Black men; severe criticism of U.S. domination of people of color around the world; rebroadcasting of speeches by Malcolm X, Minister Louis Farrakhan, Stokley Carmichael, Huey Newton, Angela Davis, and other Black activists.... S. Shields and R. Ogles, "Black Liberation Radio: A Case Study of the Micro-Radio Movement" (paper, presented at 22nd annual meeting of Popular Culture Association) (March, 1992). The community has provided strong support for Kantako's broadcasts, particularly Kantako's neighbors in the John Hay Homes and other members of Springfield's African American community. Volunteers have offered music tapes, leads on stories, and technical and air time assistance. WTRA broadcast community-oriented programming for 18 months without government interference. In January 1989, following the beating of a local boxing coach and his son by Springfield security police, Kantako broadcast a taped hospital bedside interview with the victims, which led to considerable outrage among Kantako's listeners. Soon other victims of alleged police brutality began calling the station and airing their stories. Following Kantako's broadcast of these calls and accusations of a police cover-up during a three-day hostage crisis in which two people were killed, local police notified the FCC, citing a citizen's alleged complaint of on-air profanity. Evidence suggests that this complaint was generated by the police department in response to these broadcasts condemning local police misconduct. On April 5, 1989 a representative of the FCC, accompanied by five local police officers, visited Kantako and ordered him to cease broadcasting. Kantako complied with the FCC order until April 17, 1989, when he again resumed broadcasting. The FCC then cited Kantako for broadcasting without a license and fined him $750.00. Kantako unsuccessfully appealed the fine, asserting his First and Fourteenth Amendment rights. The FCC subsequently brought Kantako before a Federal Judge to obtain a judgment against Kantako in the amount of $750. At the hearing on March 30, 1990, Kantako refused to proceed until he was represented by an attorney. Since Kantako's low income prevented him from hiring an attorney, he demanded the government appoint him counsel. Kantako's request was refused on the grounds that the FCC violation involved a civil, not a criminal, penalty. Kantako subsequently refused to participate in any further proceedings. Judgment was issued against Kantako. Kantako continues to refuse to pay the $750 fine ordered by the Court. Today, Black Liberation Radio continues to operate despite the outstanding $750 fine ordered by the Federal court. In fact, since August 14, 1990, Black Liberation Radio has expanded its broadcast schedule to 24 hours a day, 7 days a week. Kantako reports that 40 to 50 people speak on Black Liberation Radio in any given week. Many of these participants have suffered retribution from local police. This retribution often takes the form of minor harassment like selective parking enforcement, or more serious acts, such as searches and arrests based on questionable evidence. See: L. Rodriguez, "Rappin' in the Hood," The Nation, 193, Aug. 12/19, 1991. At one point, Springfield police arrested, booked and took mug shots of Kantako's 9-year old son, a radio volunteer, after he became involved in a shoving match during a soccer game at his elementary school. Then in late 1991, a .357 Magnum slug was fired through the Kantako family's front room window as Kantako was broadcasting a live telephone interview on the subject of white supremacy. The bullet barely missed Kantako's head. The Springfield Police, who have a sub-station located in the housing projects near the Kantakos' apartment, never came to investigate, despite the fact that they daily monitor and tape the station. The Springfield Housing authority, which regularly tries to evict the Kantako family on a variety of charges, also failed to inquire about this murder attempt. Mbanna Kantako and his family have also been threatened with eviction from his housing project apartment. The Housing Authority has put forth a variety of reasons for the attempted eviction, but a new provision added to the lease of the apartments in the John Hay Homes where Kantako lives suggests the real reason. The new provision requires that tenants refrain from the installation of any antenna, radio equipment and/or other communications devices on any SHA (Springfield Housing Authority) property without written consent of management. Taken literally, this overbroad prohibition would outlaw plugging in a television or radio without prior consent. This provisions appears to be aimed at silencing Kantako and his station Black Liberation Radio. In April 1992 following the acquittal of four police officers accused in the Rodney King beating, the John Hay Homes experienced uprisings similar to those occurring throughout the country. Rather than examining the implications of the verdict's response, the authorities in Springfield instead assigned blame on those operating Black Liberation Radio. Recently there have been renewed calls for the FCC to act on its judgment against Kantako and to shut down the station. OVERVIEW OF STATUTORY FRAMEWORK THE FEDERAL COMMUNICATIONS COMMISSION'S AUTHORITY TO REGULATE BROADCASTING STEMS FROM CONGRESS' CONSTITUTIONAL POWER TO REGULATE INTERSTATE COMMERCE. The Communications Act of 1934 was enacted to maintain the control of the United States over all the channels of interstate and foreign radio transmissions. 47 U.S.C. § 301 (1989). This regulatory authority is in accord with Congress' commerce clause powers under the Constitution, permitting the regulation of commerce "among the several states." U.S. Constitution, Art. , § . Congress stated in the Communications Act that: No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio...within any State when the effects of such use extend beyond the borders of that State, or when interference is caused by such use, or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications or signals from and/or to places beyond the borders of said State...except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act. 47 U.S.C. § 301(d) (1989). The language of § 301 clearly states that Congress intended to regulate the transmission of signals by radio which interfered with interstate commerce. Power to regulate radio broadcasts was granted to the FCC pursuant to § 303 of the Communications Act. According to § 303, the Commission may make regulations not inconsistent with law as necessary to prevent interference between stations and to carry out the provisions of the Communications Act as public convenience, interest or necessity requires. 47 U.S.C. § 303(f) (1989). In addition, the Commission may make rules and regulations, and prescribe restrictions and conditions not inconsistent with law, to carry out the provisions of the Communications Act or other treaties or conventions to which the United States is a party. 47 U.S.C. § 303(r) (1989). FEDERAL COMMUNICATIONS COMMISSION RULES REQUIRE THAT ALL NEW FM STATIONS HAVE A MINIMUM EFFECTIVE RADIATED POWER (ERP) OF 100 WATTS, PURSUANT TO 47 C.F.R. §73.211(a)(1)(i). The broadcasts of Black Liberation Radio are currently prohibited under current FCC rules and regulations. The Commission has authority to allocate space on the radio spectrum at 47 U.S.C. § 303(c). Since 1978, the Commission has required that all FM station (except those in Alaska) maintain a minimum effective radiated power (ERP) of 100 watts. 47 C.F.R. §73.211(a)(1)(i) (1990). FM stations licensed to broadcast with an ERP between 100 and 6,000 watts are denominated as Class A stations. Id. Class A stations may have an ERP of less than 100 watts provided that the station's reference distance equals or exceeds six kilometers. 47 C.F.R. § 73.211(a)(3) (1990). "Reference distance" is a technical concept defined in the regulations at 47.C.F.R. § 73.211(b)(1)(i) (1990). Because of the limited effective radiated power of Black Liberation Radio (approximately 1 mile), this station's signal is unable to exceed this minimum reference distance requirement of six kilometers. The prohibition on licensing new FM stations operating at less than 100 watts ERP stems from a 1978 Commission Report and Order issued by the Commission pertaining to Class D FM Educational Broadcast Stations operating at a minimum 10 watts. This freeze on 10-watt operations was initiated following issuance of the Commission's First Report and Order, 68 F.C.C. 2d 988 (1978). The Commissions's rationale for requiring a minimum broadcast signal of 100 watts for most Class D educational FM radio stations is found in the FCC's 1978 Second Report and Order, In The Matter of Changes in the Rules Relating to Noncommercial Educational FM Broadcast Stations 69 F.C.C. 2d 240, 44 R.R. 2d 235 (1978), amended, 70 F.C.C. 2d 972, 44 R.R. 2d 1685 (1979). Prior to the Second Report and Order, Class D educational stations could operate with no more than 10 watts Effective Radiated Power (ERP). This was the lowest FM power licensed by the Commission. Class D licenses are available only for noncommercial educational operation. The Commission sought to remove these low power Class D stations from the FM band based on a judgment that these channels were not being used in an effective and efficient manner. Memorandum Opinion and Order, 70 F.C.C. 2d 973 (1979). Because of this ruling, no new Class D applications may now be filed with the Commission. 47 CFR § 73.512(c) (1989). [DELETE THIS PARAGRAPH?] Although 47 U.S.C. § 324 directs all broadcast stations to operate with the minimum power necessary, the Commission in their Second Report and Order raised the minimum effective radiated power of these Class D educational FM stations from 10 watts to 100 watts. [cite...] The Commissions cited three reasons for increasing the minimum ERP on these Class D stations: technical efficiency, wider coverage, and better quality service. Id. at [cite]. However, despite the Commission's goals, the implementation of the Second Report and Order failed to adequately satisfy any of these primary objectives. See: Note, "Educational FM Radio - the Failure of Reform, 34 Fed. Com. L.J. 432 (1982). As a result, Mbanna Kantako, micro radio practitioners and their listening audience challenge this prohibition on low power FM broadcasting. THE FEDERAL COMMUNICATIONS COMMISSION REQUIRES THAT THOSE APPLYING FOR NEW RADIO BROADCAST STATIONS DEMONSTRATE ACCESS TO MINIMUM FINANCIAL CAPITAL RESERVES, THEREBY PREVENTING POOR AND MINORITY COMMUNITIES FROM GAINING ACCESS TO BROADCAST FACILITIES. Applicants for new radio broadcast stations are required to demonstrate an ability to construct and operate the station for three months, without relying upon advertising or other revenue to meet these costs. Financial Qualifications standards of aural broadcast applicants, 69 F.C.C. 2d 407 (1978). The Commission alleged that this policy would specifically benefit minority applicants seeking entry into the radio broadcast service inasmuch as station financing had been a principal barrier to minority broadcast ownership. Id. However, such a financial barrier is discriminatory on its face in that it prevents those without wealth from gaining access to the radio medium. Furthermore, this financial barrier as applied works to discriminate against minority broadcasters who lack the $50,000 to $100,000 necessary to operate a station at a loss for three consecutive months. The effect of this rule is to deny underrepresented poor and minority communities any effective voice on the airwaves, thereby violating their right to impart and receive communication over the public airwaves. FOR A SHOWING OF RACIAL DISCRIMINATION UNDER THE EQUAL PROTECTION ACT, THE SUPREME COURT REQUIRES DISCRIMINATORY INTENT OR PURPOSE. UPON A SHOWING THAT RACIAL DISCRIMINATION IS A SUBSTANTIAL OR MOTIVATING FACTOR, THE BURDEN OF PROOF MUST SHIFT TO THE LAW'S DEFENDERS. The Supreme Court has recently argued that a showing of racial discrimination under the Equal Protection clause requires proof of racially discriminatory intent or purpose. Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor. Hunter v. Underwood, 471 U.S. 222, 227-28 (1985) (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)). In Metro Broadcasting, Inc. v. FCC, 110 S.Ct. 2997 (1990) the Supreme Court, in upholding the Commissions's policy permitting distress sales to minority broadcasters, held that the promotion of minority ownership and implementation of the FCC minority ownership policies serves an important national interest. Yet under the guise of broadcast deregulation, the Commission has eradicated the power of the broadcast media to serve minority interests. In light of the detailed pattern and practice of racial discrimination which existed within the FCC up through the 1970s, the Commission's actions with respect to broadcast deregulation reveal a pattern of active disregard and neglect with regard to the needs of minority broadcasters and communities. See infra at 85. Commission rules prohibiting the unlicensed operation of micro radio by minority broadcasters when these broadcasts advance the public interest reflect the Commission's continuing discriminatory policies and practices. ARTICLE 19 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, RECENTLY RATIFIED BY THE UNITED STATES SENATE, GRANTS CITIZENS OF ALL NATIONS ADDITIONAL RIGHTS OF FREEDOM OF EXPRESSION. The International Covenant on Civil and Political Rights was ratified by the United States Senate on April 2, 1992. This document was deposited at the United Nations by President Bush on June 8, 1992, and becomes effective on September 8, 1992. On September 8, 1992, this Human Rights document will have the force of law in the United States. Article 19(2) of this International Covenant states that everyone shall have the right to freedom of expression. This right includes "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through other media of his choice." Although Article 19(3) of the International Covenant indicates that the above rights may be subject to certain restrictions, these restrictions may only be such as are provided by law and necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or public health and morals. THE AMERICAN CONVENTION ON HUMAN RIGHTS: ARTICLE 13, Article 13 of the American Convention on Human Rights entered into force on July 18, 1978. This document states that everyone has the right to freedom of thought and expression, including the freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. The exercise of this right is subject to some limitations such as respect for the rights and reputations of others, and the protection of national security, public order, or public health or morals. However, this right of expression may not be restricted by "indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or implements or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions." [Cite]. EUROPEAN CONVENTION ON HUMAN RIGHTS: ARTICLE 10 Article 10 of the European Convention on Human Rights, amended according to the provisions of Protocol No.3 entered into force on 21 September 1970, and amended according to the provisions of Protocol No. 5 entered into force on 20 December 1971. This document states that everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 10 does not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. However, the interpretation of Article 10(2) in the case of Radio Gropera v. Switzerland, Judgment of 28 March 1990, Series A No. 173, calls into question the validity of prohibiting radio stations with less than 100 watts. See infra at 109. ARGUMENT I. FCC JURISDICTION UNDER THE COMMERCE CLAUSE A. THE FCC HAS NO AUTHORITY TO REGULATE LOW POWER FM BROADCASTS WHICH 1) DO NOT EXTEND BEYOND STATE BORDERS OR WHICH 2) DO NOT INTERFERE WITH OTHER BROADCASTS THAT EXTEND BEYOND STATE BORDERS. The Communications Act of 1934 was enacted to maintain the control of the United States over all the channels of interstate and foreign radio transmissions. 47 U.S.C. § 301 (1989). Congress expressly stated within the Communications Act of 1934 that: No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio...within any State when the effects of such use extend beyond the borders of that State, or when interference is caused by such use, or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications or signals from and/or to places beyond the borders of said State...except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act. 47 U.S.C. § 301(d) (1989). This language clearly states that Congress intended to regulate the transmission of signals by radio which interfered with interstate commerce. Power to regulate radio broadcasts is granted to the FCC pursuant to § 303 of the Communications Act. Under § 303, the Commission may make regulations not inconsistent with law as it may deem to necessary to prevent interference between stations and to carry out the provisions of this Act as public convenience, interest or necessity requires. 47 U.S.C. § 303(f) (1989) (emphasis added). In addition, the Commission may make such rules and regulations, and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act or other treaties or conventions to which the United States is a party. 47 U.S.C. § 303(r) (1989) (emphasis added). Although the Commission may regulate every aspect of radio broadcasting that touches upon interstate commerce, the Commission has no authority to regulate those activities which consist solely of intrastate commerce. While Congress may lawfully require the licensing and regulation of intrastate radio broadcasting stations where their operation interferes with interstate commerce, United States v. Gregg, 5 F.Supp. 848, 857 (S.D. TX, 1934), the Commission has no authority to regulate micro radio broadcasts which extend only 1 mile, where these broadcasts are transmitted on an open frequency and do not interfere with the transmission or reception of broadcast signals transmitted from outside the State into that State, or transmitted from inside the State and crossing the borders into another State. As a result, operation of Black Liberation Radio in no way implicates the powers of Congress or the Commission to regulate interstate radio broadcasts. Mbanna Kantako's intrastate micro radio broadcasts must be distinguished from other low power radio broadcasts found to be subject to regulation under the Communications Act. In United States v. Gregg, 5 F.Supp 848 (1934), the Federal Radio Commission (FRC), the Commissions predecessor, sought to stop the broadcasts of a community radio station operated in Houston by the Voice of Labor, Inc. In that case, defendants broadcast on an AM radio station at 1,310 kilocycles with station power from 2 to 4 watts. Id. at 850. The court upheld the FRC's jurisdiction over the Houston station's intrastate broadcasts after observing that the "service area" (the area within which the program being broadcast can be heard over an ordinary receiver set) extended an average of 30 miles surrounding the station. Id. at 851. In addition, the court noted that the "nuisance area" (area where the broadcast is sufficiently strong to produce heterodyne interference with the broadcasting of other stations, but not sufficient to allow the listener over the ordinary radio to understand it) was "some considerable distance beyond the service area." Id. Based on the wide radius of the Houston station's broadcasts, the court was persuaded that defendant's radio signals significantly interfered with the transmission of energy, communications and signals by other licensed radio stations at the same frequency of 1,310 kilocycles from places beyond the limits of Texas to places within Texas. Id. Because the daytime broadcasts of the Houston station seriously interfered with the radio signals from outside the State, the court concluded that Congress and the FRC was within its authority to regulate this intrastate activity. Unlike the Houston station's broadcasts in the above case, Black Liberation Radio transmits a signal that can be heard only within a radius of approximately 1.5 miles of the station transmitter. Although the "nuisance area" of this signal extends somewhat farther, the maximum potential radius of interference caused by Kantako's signal cannot go far. Additionally, this signal in no way interferes with the transmission or reception of signals of other licensed in-state or out-of-state stations broadcasting at 101.7 megahertz on the FM band. In fact, Kantako's early broadcasts went largely unnoticed outside the black community of Springfield until his coverage of the police beating of Johnny Howell brought the station to the attention of the Springfield community. When the FCC issued their first complaint in April 1989, WTRA had been on the air for 18 months broadcasting programs of music and community information without incident. In addition, although the police claim they alerted the FCC after a citizen's compliant of on-air obscenity, evidence suggests that it was the police themselves who generated the complaint following these particularly strong programs on police misconduct. The record otherwise reveals no complaints to the FCC regarding Black Liberation Radio's signal interference with other stations at 107.1 MHz on the FM band. Because the broadcast radius of Kantako's micro radio station is relatively insignificant by comparison to defendant's 30 mile signal radius in United States v. Gregg, and because no interference can be found with the broadcast signal of any station either broadcasting into Illinois from out-of-state, or from Illinois to outside that State's borders, Black Liberation Radio's broadcasts can be distinguished from the serious interference with interstate broadcasts found in United States v. Gregg. The case of United States v. Brown 661 F.2d 855 (1981, 10th Cir.), also provides insight into the Commission's regulation of radio signals which may extend or interfere with signals extending beyond the borders of the State pursuant to § 301 of the Communications Act. In United States v. Brown, the court ruled that evidence that an unlicensed citizen's band radio transmission was powerful enough to cross the state border was sufficient to sustain a conviction for violation of § 301(d) of the Communications Act, although the jury was never instructed that the Government must show the signals actually left the State. In sustaining defendant's conviction, the court noted that § 301(d) expressly states that the United States intends to control all channels of interstate radio transmission. Id. at 856. Here, the court held that a violation of § 301(d) is satisfied by proof that defendant's transmission was merely powerful enough to cross the state border. Id. In Brown, the court found there was sufficient evidence presented to the jury to support a judgment that defendant was in violation of § 301(d). Id. This evidence consisted of radio transmissions intercepted within the broadcaster's state by FCC agents. Although these radio signals were intercepted only a few miles from defendant's transmitter, the wattage of the transmissions was greater than FCC allowed for citizen's band use, and evidence was sufficient to show that the transmissions could have crossed state borders or interfered with interstate radio signals. Id. at 855-56. Defendant's transmitter, which was confiscated by the FCC, was later found capable of transmitting signals over 100 miles. Id. at 855. Again, there is no such showing that the 1 watt signal of Black Liberation Radio has in any way interfered or could interfere with radio signals travelling interstate. The broadcast signal of this micro radio station extends approximately 1.5 miles, not 100 miles. Additionally, this signal can be heard only within an area of Springfield, Illinois encompassed by the John Hay Homes, a housing project in a neglected area of that community. As a result, Black Liberation Radio's signal is significantly weaker than those signals found in cases upholding the FCC's authority to regulate interstate and certain intrastate radio transmissions. The broadcast signal of Black Liberation Radio simply cannot extend beyond the city borders of Springfield, much less the State borders of Illinois. In any event, no nearby broadcasters utilize the space on the FM spectrum (107.1 MHz) currently occupied by Black Liberation Radio. If the FCC were to later allocate this frequency to a licensed broadcaster, Black Liberation Radio concedes that it would change frequencies rather than interfere with a licensed station's broadcast signal. However, inasmuch as no interference with any licensed broadcast outlet currently exists, and inasmuch as it is physically impossible for Black Liberation Radio to transmit its signal across state lines, no violation of § 301(d) can be found. The plain language of § 301(d) makes it clear that the Commission is authorized only to regulate those broadcasts transmitted across state borders, or those broadcasts which in some other manner interfere with licensed stations engaging in commerce among the States. "If Congress had intended to regulate broadcasts which could but do not in fact extend beyond state boundaries, it was capable of saying so." Id. at 857 (McKay, dissenting). In fact, the language of the § 301(d) reveals that Congress intended to regulate less than the full commerce clause power inasmuch as this language covers two kinds of broadcasts only: 1) those whose effects extend beyond state borders; and 2) those whose effects do not extend beyond state borders but which interfere with other broadcasts that themselves extend beyond state borders. Id. As such, the operation of micro radio station Black Liberation Radio is not governed by any of the statutory language of § 301(d) nor by any subsequent case law. The Commission therefore lacks authority to regulate Black Liberation Radio's micro radio broadcast inasmuch as that station is engaged solely in intra-state broadcasting, with no discernable or likely impact on interstate broadcasts of any kind. The Commission's attempt to silence Black Liberation Radio violates Mbanna Kantako's First Amendment right to communicate in that the Commission has exceeded Congressional authority pursuant to § 301(d) and § 303(f) of the Communications Act. Because the FCC lacks authority to regulate this micro radio station, the Commission must respect Kantako's First Amendment right to communicate as well as that community's right to receive Kantako's low power broadcasts. II. THE RIGHT TO COMMUNICATE AND THE FIRST AMENDMENT A. THE FIRST AMENDMENT AND THE DEMOCRATIC PROCESS - THE PURPOSE OF THE FIRST AMENDMENT IS TO PROTECT THE DEMOCRATIC PROCESS BY ALLOWING FOR A) AN INFORMED PUBLIC; B) EXCHANGE OF UNPOPULAR AND UNORTHODOX OPINIONS ALONG WITH REGULAR COMMERCE; AND C) BROAD DIALOGUE AMONG THE POPULACE; FIRST AMENDMENT RIGHTS ARE THE RIGHTS OF THE HEARERS AS WELL AS THE COMMUNICATORS. MEIKELJOHN ARGUMENT ..."speech concerning public affairs is more than self- expression; it is the essence of self-government (cited at Syracuse Peace Council, 2 FCC Rec 5043). Because it is the people in a democratic system who "are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments," the "[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves." (locate FN 220 and 221 in Syracuse). As the Court has previously noted, "speech concerning public affairs is more than self-expression; it is the essence of self- government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). In addition, "(i)t is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences...(and) that right may not constitutionally be abridged either by Congress or by the FCC." Red Lion Broadcasting, supra, at 390. Consequently, the Commission's failure to permit the continued operation of low power micro radio outlets such as Black Liberation Radio constitutes an unconstitutional violation of Mbanna Kantako's First Amendment rights. B. 47 CFR § 73.506 OF THE TELECOMMUNICATIONS ACT IS UNCONSTITUTIONAL ON ITS FACE: BLANKET REFUSAL TO LICENSE OR OTHERWISE PERMIT VERY LOW POWER RADIO BROADCASTS IS, ON ITS FACE, AN UNCONSTITUTIONAL VIOLATION OF 1ST AMENDMENT RIGHTS. Even assuming the FCC has jurisdiction to regulate micro radio pursuant to § 301(d) et. seq., the Commission's refusal to license or otherwise permit low power micro radio broadcasts unlawfully infringes upon the First Amendment rights of Kantako and his listeners. The Supreme Court has previously noted that the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. Red Lion Broadcasting, 395 U.S. 367, 390 (1969). In addition, "(i)t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Id., citing Associated Press v. United States, 326 U.S. 1, 20 (1945), New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). The Supreme Court also observed in Columbia Broadcasting System, Inc. v. Democratic National Committee 412 U.S. 94 (1973) that: Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of great delicacy and difficulty.... The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded ten years hence. Id. at ____. The Congressional mandate of the Commission is to regulate the airwaves in the public interest, convenience and necessity. The Commission was created to regulate interstate commerce in communication by radio "so as to make available, so far as possible, to all the people in the United States a rapid, efficient, nation-wide and worldwide wire and radio communication service." C.J. Community Services, Inc. v. FCC, 15 R.R. 2029, 2032 (D.C. Cir., 1957) (citing "Can Community Antenna TV Be Enjoined"?, 20 Albany L.Rev. 69, 75 (1956)). As a result, the Commission has a duty to "devise through its rule-making authority, the basis upon which 'all the people of the people of the United States' may receive service through a licensed station." Id. The language of the Communications Act enables the Commission to take into account extenuating circumstances where the technical violation of unlicensed broadcasting has occurred as a means to facilitate the public interest. See Id. Because of the need for micro radio in Springfield and other communities, the Commission must accommodate this new communications technology rather than perpetuate its outright prohibition. In 1987, the Commission affirmed the Supreme Court's assertion in FCC v. League of Women Voters that "the dramatic transformation in the telecommunications marketplace provides a basis for the Court to reconsider its application of diminished First Amendment protection to electronic media." In re Complaint of Syracuse Peace Council, 2 FCC Rcd 5043, 5058 (1987) (citing FCC v. League of Women Voters at ___). The Commission went on to say that Despite the physical differences between the electronic and print media, their roles in our society are identical, and we believe that the same First Amendment principles should be equally applicable to both. This is the method set forth in our Constitution for maximizing the public interest; and furthering the public interest is likewise our mandate under the Communications Act. Id. Additionally, the Communications Act provides that "the Commission from time to time, as public convenience, interest, or necessity requires, shall...study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest. 47 U.S.C. § 303(g) (1989). In light of the Commission's statutory duty, failure to permit micro radio broadcasts under any circumstances constitutes an infringement on Mbanna Kantako's First Amendment right to communicate. In addition, the right of the surrounding community to receive information is impermissibly burdened by the FCC's failure to authorize micro radio broadcasts where these broadcasts serve to promote vital First Amendment concerns and no interference with licensed broadcasts otherwise occurs. Again, "(t)he First Amendment must...safeguard not only the right of the public to hear debate, but also the right of the individual to participate in that debate and to attempt to persuade others to their points of view." Columbia Broadcasting Services, Inc. v. Democratic National Committee, 412 U.S. 94, 193 (1973) (Brennan, dissenting) (citing Thomas v. Collins, 323 U.S. 516, 537 (1945); and NAACP v. Button, 371 U.S. 415, 429-30 (1963)). Thus, failure of the Commission to license or otherwise permit micro radio broadcasts is unconstitutional where there is unused space on the radio spectrum and low power access to the airwaves does not interferes with or otherwise impede the transmission of other radio signals. C. THE FM PORTION OF THE SPECTRUM IS A FIRST AMENDMENT FORUM: HAVING OPENED THE FORUM TO 1ST AMENDMENT ACTIVITY, THE GOVERNMENT MUST APPLY 1ST AMENDMENT STANDARDS TO ITS USE. Although the Commission retains regulatory authority over micro radio, no compelling interest supports the blanket prohibition of very low power community radio broadcasts. The Communications Act of 1934 states that the Commission may assign bands of frequencies to the various classes of stations, assign frequencies for each individual station and determine the power which each station shall use. 47 U.S.C. § 303(c). However, while the Commission serves the role of "traffic cop" with regard to spectrum allocation, a blanket refusal to permit low power FM broadcasts is an arbitrary and capricious abuse of Congressional authority, and is therefore an unconstitutional violation of Kantako's First Amendment rights. The FM band of the electromagnetic spectrum is a place where speakers communicate messages to an audience, and, like any other forum where First Amendment activity is subject to interference, government may make reasonable rules for its use, FCC v. League of Women Voters, 468 U.S. 364 (1984); compare Lovel v. Griffin, 303 U.S. 444(1938), Kovacs v. Cooper, 303 U.S. 77 (1949), Feiner v. New York, 340 U.S. 315 (1951), Widmar v. Vincent, 454 U.S. 263 (1981), Ward v. Rock Against Racism, U.S. (19 ). Thus Congress enacted the Communications Act of 1934, 47 U.S.C.A. 151 et seq., and created the Federal Communications Commission empowering it to make such regulations as are necessary to prevent interference and otherwise to carry out the provisions of the Act, 47 U.S.C.A. 303, 303(f), and 303(r). But the Commission is specifically forbidden to promulgate any rule or condition "which shall interfere with the right of free speech," 47 U.S.C.A. 326, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). While the government may regulate activity in a First Amendment forum so long as reasonable rules are adopted to regulate the time, place and manner of protected speech, it is equally true that upon opening a forum to First Amendment activity the government is constrained in the exclusions it may enforce. In the traditional public forum, the government may not enforce content based exclusions unless such enforcement is necessary to serve a compelling state interest and the regulation is narrowly drawn to achieve that end. Perry Educator's Assn v. Perry Local Educator's Assn, 460 U.S. 37 (1983), Widmar v. Vincent, 454 U.S. 263 (1981), Carey v. Brown, 447 U.S. 455 (1980), and Police Department of Chicago v. Mosley, 408 U.S. 92 (1972). Further, while the rule of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), foreclosing regulation of editorial freedom has not been fully applied to broadcast media, nonetheless sensitivity to the First Amendment nature of the activity in the broadcast forum requires that editorial restrictions be narrowly tailored to further a substantial governmental interest," FCC v. League of Women Voters, supra, at ___. The government must meet a high burden in justifying speech restrictions relating to traditional public fora, since the purpose of the public forum doctrine is to give effect to the broad command of the First Amendment to protect speech from governmental interference. Society for Krishna Consciousness v. Lee, 1992 U.S. Lexis 4532, ___ U.S. ___ (1992) (Kennedy, concurring in part). Traditional public fora are those that "by long tradition or by government fiat have been devoted to assembly and debate," such as "streets and parks which have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Perry Ed. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983) (quotations and citations omitted); see also, e.g., Frisby, 108 S.Ct at 2499, Carey v. Brown, 447 U.S. 455, 460-61 (1980). The Court in Society for Krishna Consciousness v. Lee, supra, reiterated that regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny, with such regulations surviving only if they are narrowly drawn to achieve a compelling state interest. Id. at ___, citing Perry at 45. In addition, content-neutral regulations such as time, place and manner restrictions must be narrowly tailored to serve a significant government interest and must leave open alternative channels of communication. Perry, 460 U.S. at 45. The rule that individuals have a right to use public fora such as streets and parks to communicate their views was first handed down in Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) wherein the court determined the government had a high burden in justifying any restrictions, inasmuch as these avenues of expression were held in trust for the use of the public, and "have been used for purposes of...communicating thoughts between citizens, and discussing public questions." Id. However, while the court in Hague v. Committee for Industrial Organization maintained that streets and parks "have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions" (Id.), in fact no right of free speech as we now know it existed in this country until a basic transformation of the law governing free speech occurred during the period in which the Hague decision was issued. See: D. Kairys, "Freedom of Speech," in Politics of Law, 237 (1990). Prior to the decision in Hague citizens were typically subject to arrest and incarceration for asserting their First Amendment right to speak on public streets, sidewalks, and parks. See Commonwealth v. Davis, 162 Mass. 510 (1895); aff'd in Davis v. Massachusetts, 167 U.S. 43 (1897). At this time, courts were more frequently of the opinion espoused earlier by Oliver Wendell Holmes that: For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. Commonwealth v. Davis, at 511. Rather than overruling the Court's earlier affirmation of Commonwealth v. Davis, the later Supreme Court ruling in Hague referred instead to natural law, arguing that "(s)uch use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague at ___. Ultimately, until Hague the Supreme Court had consistently failed to make any major pronouncements repudiating the holding of Davis. In addition, the Court consistently failed to reverse any convictions occurring under the Espionage Act, which at the time violated the First Amendment rights of citizens by serving to criminalize dissent. See: Schenck v. United States, 249 U.S. 47 (1919). See also: Abrams v. United States, 250 U.S. 616 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919). That it took until 1939 for the Supreme Court to assert its position in Hague shows the extent to which the Court's transformation reflected fundamental changes in American society; changes which included World War I, the Depression, the New Deal, and the prominent role of the Labor Movement in contesting previous restrictions on public speech. See, D. Kairys, supra, at 257. Despite this legal fiction at the core of the public forum doctrine, the Court's reaffirmed in Society for Krishna Consciousness v. Lee, 1992 U.S. Lexis 4532, ___ U.S. ___ (1992) that streets and parks have "immemorially" been held in trust for the use of the public. This assertion was here used to justify a prohibition on the solicitation of monies by members of the Hare Krishna religion at municipal airports. In Society for Krishna Consciousness, the court held that traditional public fora are limited to public property which have as "a principle purpose...the free exchange of ideas'" (Id. at 6, quoting Cornelius v. NAACP) and that this purpose must be evidenced by a long-standing historical practice of permitting speech. Id. at 7, ante, at 1-2 (O'Connor, concurring in part). Nevertheless, the Court's strict adherence to a public forum doctrine developed over 50 years ago is no longer adequate given the social changes and technological advances which have shaped society over the intervening years. Author David Kairys writes that: Essentially, the law and society have frozen the scope and nature of our speech rights at levels appropriate to the 1930s, when specific audiences like factory workers were geographically centered, and speaking, gathering and distributing literature in public places were the primary means of communication. The speech rights conceived in that period do not provide access to our current means of communication. Technological, social and cultural changes have rendered the fruits of the free-speech struggle somewhat obsolete. Television, radio, newspapers (increasingly concentrated and limited in number and diversity), and direct mail now constitute the battleground, and the marketplace of ideas. In the absence of mass-based demands, we have allowed no meaningful inroads into these media for people or groups without substantial money or power. The scope and reality of our speech rights as a means of communication and persuasion are thus limited by these legal, economic and practical barriers. D. Kairys, "Freedom of Speech", The Politics of Law, p. 261- 262. Another author has suggested with respect to the regulation of television that: The time has come to update the public forum to the television age...television has become America's primary media language. Use of the streets and parks for expression without the assistance of telecommunications facilities is only partially effective and does not adequately serve the goals of the First Amendment. - M. Minninberg, "Circumstances within our Control: Promoting Freedom of Expression through Cable Television," Hastings Constitutional Law Quarterly, Vol. 11, No. 4, Summer 1984, pp. 595-596 and 598. In his partially concurring opinion in Society for Krishna Consciousness, Justice Kennedy also recognized the static nature of the Court's public forum jurisprudence. While affirming the right of Hare Krisha members to distribute flyers and literature inside public airport terminals, Justice Kennedy observed that: the policies underlying the [public forum] doctrine cannot be given effect unless we recognize that open, public spaces and thoroughfares which are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of the property. There is support in our precedents for such a view.... Without this recognition our [public] forum doctrine retains no relevance in times of fast-changing technology and increasing insularity. In a country where most citizens travel by automobile and parks all too often become locales for crime rather than social intercourse, our failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity. Society for Krishna Consciousness v. Lee, supra at ___, (Kennedy, concurring in part). For the public forum doctrine to become relevant to the modern world of instantaneous mass telecommunications, the Commission and the courts must recognize that AM and FM airwaves are the modern equivalent of parks, streets and sidewalks. Although technological access to the airwaves has not existed since time immemorial, the government promptly dedicated the airwaves to the public trust as a medium of communications, just as "all public streets are held in the public trust and are properly considered traditional public fora." Society for Krishna Consciousness, supra, at ___ (Souter, concurring in part), citing Frisby v. Schultz, 487 U.S. 474, 481 (1988). By opening the public airwaves to communication, the government sought to regulate this forum only to the extent that such regulations advanced the public interest, convenience and necessity. 47 U.S.C. § 303 (1989). Furthermore, the airwaves have as a principal purpose the promotion of the free exchange of ideas. Cornelius v. NAACP Legal Defense and Educational Fund, Inc. 473 U.S. 788 (1985). "Indeed, unlike the streets, parks, public libraries, and other "forums" that we have held to be appropriate for the exercise of First Amendment rights, the broadcast media are dedicated specifically to communication." Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412 U.S. 94, 195 (1973) (Brennan, dissenting). Certainly, the expression of ideas - whether political, commercial, musical, or otherwise - is the exclusive purpose of the broadcast spectrum. Id. As a result, the government must establish a compelling interest to justify any regulation interfering with First Amendment activity over the public airwaves. Under such scrutiny, no compelling governmental interest supports the blanket prohibition of micro radio broadcasts which cause no significant interference with licensed broadcasts. To the extent that the Commission has been found to have the authority to regulate other "pirate" or otherwise unlicensed radio broadcasts, Kantako's operation of micro radio station Black Liberation Radio may be distinguished inasmuch as this station, with a broadcast radius of only one mile, serves a compelling interest by providing political, social and cultural dialogue to the community of listeners otherwise unserved by the print and electronic media of Springfield and neighboring communities. D. EVEN IF THE AIRWAVES ARE TREATED AS A DESIGNATED PUBLIC FORUM, PROHIBITION OF LOW POWER MICRO RADIO BROADCASTS DOES NOT SATISFY A COMPELLING GOVERNMENT INTEREST, NOR IS SUCH A PROHIBITION NARROWLY TAILORED TO MEET THAT INTEREST. Even assuming that the court does not find that radio airwaves constitute a "traditional" public forum, in that the broadcast spectrum was opened by "modern" technology, these airwaves may still be properly categorized as a designated public forum. A designated public forum is created when the state opens to the public generally "a place for expressive activity." Perry, 460 U.S. at 45. Regulation of designated public fora is also subject to strict scrutiny. Id. at 46. A designated public forum must be "held open to the general public" or made available "for indiscriminate use by the general public." Perry, 460 U.S. at 47. The Court has stated that the fact that some members of the public are selectively invited to use government property does not convert the property into a designated public forum. Greer v. Spock, 424 U.S. 828, 838 n.10 (1976). Nevertheless, the Commission's regulations and licensing procedures with regard to the airwaves occur within the context of a public trust. The Court has previously held that it is the people as a whole who retain their interest in free speech by radio and it is their collective right to have the medium function consistently with the ends and purposes of the First Amendment. Red Lion Broadcasting, supra, at 390. The nature of American democracy has undergone significant transformation as this country has entered the age of information. As a result of this transformation, television and radio have become the modern-day equivalent of the printing press, with the spectrum constituting the modern-day equivalent of the street corner. Indeed, the electronic media are today the public's prime source of information. Broadcast "technology... supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news..." (cite...) Although "full and free discussion" of ideas may have been a reality in the heyday of political pamphleteering, modern technological developments in the field of communications have made the soapbox orator and the leafleteer virtually obsolete. Because the electronic media is today the dominant means of communicating with the public, any policy that absolutely denies citizens access to the airwaves necessarily renders even the concept of "full and free discussion" practically meaningless. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 196 (1973) (Brennan, dissenting) (citing Red Lion, supra, at 386 n. 15) Most Americans today rely on the electronic media almost exclusively to obtain information previously obtained through the print media or social gathering places. As a result, the airwaves must be appropriately analogized to a designated public forum, with strict scrutiny required to uphold any time/place/manner regulations impinging upon First Amendment rights. In addition, the means used in regulating micro-radio must be necessary. In fact, the airwaves are may properly be analogized to newspaper racks on public streets. In City of Lakewood v. Plain Dealer Publishing Co., 108 S.Ct. 2138 (1988) the Supreme Court struck down a local ordinance which apparently gave the city's mayor discretion in issuing permits to place newsracks on city streets. See Id. at 2150-52. Ultimately the Court ruled that the mayor's discretion in issuing permits was to be circumscribed by objective standards, holding that a public forum analysis applied where newsrack space was needed to distribute newspapers. See Id. at 2147-49. Similarly, a public forum analysis is appropriate in regulating the distribution of space on the public airwaves. As applied to Mbanna Kantako's operation of the micro radio station Black Liberation Radio, such an analysis would suggest that the Commission has exceeded its authority in absolutely prohibiting all micro radio broadcasts pursuant to 47 C.F.R. § 73.506. The Commission's decision to prohibit every micro radio broadcast must meet a compelling State need in light of Kantako's vital First Amendment rights. Because Black Liberation Radio successfully broadcast for almost two years before the FCC was notified by Springfield police, and because the station was allowed to continue broadcasting to the John Hay Homes neighborhood on a daily uninterrupted basis following this April 1989 FCC intervention, the Commission can show no compelling reason why 1 watt FM broadcasts on Black Liberation Radio must be prohibited, particularly where no alternative forum exists in the community for the political and cultural viewpoints broadcast by this station. Inasmuch as the broadcast spectrum was expanded in 1984 to allow for the allocation of nearly 700 new stations, little justification remains for excluding the poor, particularly where the only access sought here is that enabling the broadcaster to reach residents of a low income housing project living within 1 mile of the radio transmitter. E. EVEN IF THE AIRWAVES ARE TREATED AS A NON-PUBLIC FORUM, PROHIBITION OF LOW POWER MICRO RADIO BROADCASTS IS UNCONSTITUTIONAL INASMUCH AS NO RATIONAL BASIS EXISTS FOR THE ELIMINATION OF SUCH BROADCASTS FROM THE AIRWAVES. THEREFORE, 47 CFR § 73.506 WHICH PROHIBITS ALL LICENSED FM BROADCASTS AT LESS THAN 100 WATTS IS UNCONSTITUTIONAL ON ITS FACE AS AN UNREASONABLE EXERCISE OF AUTHORITY BY THE COMMISSION, IN THAT IT IS ARBITRARY AND CAPRICIOUS. Even assuming the Court perceives the airwaves as a non- public forum, the Commission can show no rational basis to justify the suppression of all unlicensed 1 watt FM radio broadcasts where those broadcasts serve an important public interest. In Mbanna Kantako's case, the important public interest is that of providing political and cultural programming to a disenfranchised minority community otherwise ignored by other licensed media channels within that community. The Commission's authority for allocating spectrum space is found at 47 U.S.C. Sec. 303(c) (1989). This statutory provision allows the Commission to assign bands of frequencies and determine their power of operation. Id. Any unlicensed operation of a radio transmitter is a violation of § 301 of the Communications Act of 1934, 47 USC § 301 (1982), and carries a maximum penalty of $10,000 or one year imprisonment. 47 U.S.C. § 501 (1982). The Commission's prohibition on the licensing of new FM stations operating at less than 100 watts ERP stems from a 1978 Commission Report and Order (Docket 20735) which attempted to eliminate most Class D FM Educational Broadcast Stations operating at a minimum of 10 watts. The Commissions's rationale for mandating a minimum broadcast signal of 100 watts for most Class D educational FM radio stations is found in the FCC's 1978 Second Report and Order, entitled In The Matter of Changes in the Rules Relating to Noncommercial Educational FM Broadcast Stations 69 F.C.C. 2d 240, 44 R.R. 2d 235 (1978), amended, 70 F.C.C. 2d 972, 44 R.R. 2d 1685 (1979) (Hereafter, "Second Report and Order"). Prior to the Second Report and Order, Class D stations operated at 10 watts Effective Radiated Power (ERP), the lowest FM power licensed by the Commission. Class D licenses were available only for noncommercial educational operation. These 10 watt stations were initially intended to serve limited broadcast areas such as college campuses and local communities. The Commissions Second Report and Order sought to remove all low power Class D stations from the airwaves in the United States (excepting Alaska). As a result, no new Class D applications may now be filed with the Commission. 47 CFR § 73.512(c) (1989). Although 47 U.S.C. § 324 directs all broadcast stations to operate at the minimum power necessary, the Commission in their Second Report and Order raised the minimum effective radiated power of these Class D educational FM stations from 10 watts to 100 watts. The Commission cited three reasons for increasing the minimum ERP on these Class D stations: technical efficiency, wider coverage, and better quality service. Unfortunately, the implementation of the Second Report and Order completely failed to adequately accomplish any of these primary objectives. See: Note, Educational FM Radio - the Failure of Reform, 34 Fed. Com. L.J. 432 (1982) (Hereafter, "Educational FM Radio"). The Second Report and Order largely failed in meeting the Commission's goals because the methods used were not rationally related to the Commission's objective - creating additional space on the radio spectrum for high quality, high power educational broadcast outlets. The rule change failed to achieve its goals in part because of the unrealistic approach of the proposal itself. Educational FM Radio, supra, at 453. In fact, the proposed rule changes were incapable from the start of ever attaining the goal set for them. Id. Because this rule was not narrowly tailored to allow for continued low power FM broadcasts where these broadcasts best suited the local community, it constitutes an abuse of discretion by the Commission and thus an unconstitutional abridgement of the right to communicate. Once the failure of this policy was recognized, the Commission should have modified its rules in order to achieve the important and acknowledged goal of promoting broadcast diversity. (cite Metro Broadcasting). The goal of the Commission's 1978 rule change was to create more space on the FM spectrum, thereby paving the way for more high-power "professional" educational FM stations. The Commission sought to achieve this goal by eliminating all low- power Class D stations from the educational band. The Commission viewed these stations as an inefficient use of spectrum space because their coverage was limited to just a few miles. However, given the goal of wider coverage, the insubstantial power boost resulting from an increase to a minimum power of 100 watts failed to justify the elimination of almost all 10 watt stations within the continental United States. The Commission's assumption that higher-power stations make more efficient use of spectrum space than do multiple low-power stations was not so much a technical judgment as a value judgment. The Commission's goal of more efficient use of the radio spectrum was ostensibly to make room for "higher quality" educational FM radio, with wider coverage for noncommercial educational broadcasts. Second Report and Order, supra, at ___. However, rather than meeting these goals, the rule change instead had the opposite effect. See: Educational FM Radio, supra, at 451-52. In fact, the Commission's rule change had the effect of forcing most 10 watt FM stations to increase their minimum power to 100 watts. This mandatory power increase resulted in little or no eventual improvement in the quality of educational programming. As a result, none of the Commission's three objectives (technical efficiency, wider coverage and better quality service) was ever achieved. First, rather than achieving greater technical efficiency by clearing up space on the FM spectrum, the Commission's Second Report and Order had the opposite effect of further crowding the spectrum. While the Commission sought to add a number of new full service stations, this was premised on the elimination of most 10 watt Class D stations. As outlined above, most of these Class D stations went on to become more powerful Class A stations. Because few alternatives were available to Class D stations except the option of becoming high power Class A stations, the Commission in effect sought to ensure more efficient use of spectrum space by actually raising the minimum power of these stations. This counter-intuitive solution to the perceived problem of spectrum scarcity reveals that the Commission's ban on low-power 10 watt FM stations was irrational and unreasonable given the overriding goals set forth in the Second Report and Order. The net effect of the Commission's policy was to further crowd the airwaves. Secondly, the goal of attaining wider coverage by providing noncommercial educational radio to a larger percentage of the population was never achieved. See: Educational FM Radio, supra, at ___. While the Commission's 1978 rule change was intended to eliminate the number of 10 watt stations on the air, the ultimate effect was that most Class D stations applied for and became Class A status stations, broadcasting at a minimum power of 100 watts. In effect, this rule change merely increased the crowding of the spectrum without providing significant additional coverage or providing any room for newer, higher power professional stations. In fact, the predicted distance in miles to the 60 dbu contour for a 10-watt stations is 12 miles, whereas the distance is only approximately 25 miles for a 100 watt station, and 40 miles for a 1,000 watt station. Likewise, the 40 dbu contour for a 10 watt station would be reached at 40 miles, while this would be 53 miles for a 100 watt station and 70 miles at 1,000 watts. Thus, at the 40 dbu level, an increase in power from 10 watts to 100 watts would result in an increase in range of only 15 miles. (All figures taken from Educational FM Radio, supra, at 434 n. 12). Inevitably, the Commission's elimination of Class D educational stations worked "primarily to create a new class of minimum wattage Class A stations, providing only marginally wider coverage than the Class D stations which they replaced." Educational FM Radio, supra, at 450. Finally, the goal of attaining a higher quality and larger quantity of high power professional stations was never achieved. Former Class D stations merely became Class A stations, with the same budget problems and high staff turnaround at stations affiliated with colleges and universities. In addition, the assumption that Class D 10 watt stations failed to provide valid public service was little more than a subjective and elitist value judgment on the part of the Commission. Although the Commission sought to enhance what it termed "cultural" or "educational" programming, the programming of local news, public affairs, free jazz, independent rock, world music on these local 10 watt Class D stations was hardly any less "cultural" than the classical music and NPR newscasts typically preferred by most Corporation for Public Broadcasting (CPB) affiliates. See Educational FM Radio, supra, at 443. In addition, while larger stations may have bigger budgets, this is no guarantee that their programming is more interesting, innovative or original than that of 10 watt stations with slender budgets. In fact, "(p)rofessionally produced material may be pedantic or irrelevant while the product of less-equipped but more inspired staff can be bright and vital." Id. at 444 n. 65, citing Petition of the Intercollegiate Broadcasting System, Docket 20735 (filed June 26, 1972). Indeed, the programming on 1-watt micro radio station Black Liberation Radio reveals that quality programming of political, cultural and educational material is possible with practically no budget whatsoever. Perhaps the Commission could have followed a more rational approach of improving programming quality on educational stations by implementing public service programming requirements. Merely requiring stations to broadacast at a power of 100 watts or more is no guarantee of improved program quality. As one commentator noted: The (FCC's) solution also leaves unresolved the problem of quality. Unresponsive stations will remain unresponsive regardless of power. A station which provides inadequate educational service has no incentive to do otherwise at 100 or 1,000 watts. It may also be argued that as low-budget stations are forced to spend more money on their day-to-day operations, they will have even less to spend on programming. Id. at 459-60. Indeed, some broadcasting may best performed using limited facilities. The Commission, in their Second Report and Order cited opposing arguments that maintained: (l)imited power...is an appropriate way to reach a small community or a neighborhood which is a part of a larger city of license. According to [these commentators], operation on a greater scale with substantial facilities could even bring about a separation of the station from its more limited community and thereby cause a loss of effective station/community dialogue and involvement." Second Report and Order, supra, at 245. In fact, some smaller stations had argued to the Commission they had two or three times the audience of a local 50 Kw noncommercial station. Id. at 247. Because a micro radio station is in even closer proximity to the local community, this provides further guarantees that a dialogue with that community may emerge. Such a dialogue stemming from the practice of micro radio provides greater expressive diversity and furthers the possibilities of community self-determination. The Commission may still suggest other reasons why it supports restricting radio licenses to only those who can afford to broadcast at a minimum power of 100 watts. However, these rationales are unpersuasive. The Commission may argue it is insuring that listeners have regular and dependable radio service. The Commission could claim that "home built" radio transmitters are not sufficiently dependable to provide regular and uninterrupted service. However, as technology has improved in recent years this has become less of a concern. Indeed, Black Liberation Radio has for the past several years operated a low- cost broadcast operation which has effectively served the community on a regular and uninterrupted 24-hour basis. If the Commission were to license some form of low power FM broadcasting, it could easily insure that proper equipment be used and maintained prior to issuing a license to broadcast. A low power FM broadcasting system proposed several years ago in Canada required similar information within an uncomplicated licensing procedure. See: Report and Recommendations in the Low Power Television Inquiry, BC Docket No. 78-253, Appendix 1. Additionally, the Commission may argue that only transmitters with closely regulated and predictable signal strength can be adequately evaluated and monitored by the FCC to avoid problems of interference. However, listeners who find a neighborhood station's broadcasts irregular or of poor technical quality can easily tune to any mainstream commercial station. Furthermore, the Commission could develop new regulations for low-power radio and employ different monitoring techniques for neighborhood broadcasters. Because of the low power signal of micro radio, broadcast interference would not constitute an insurmountable problem, and a uniform set of regulations regarding the operation of micro radio could prevent such interference from occurring. The Commission may also argue that the national defense strategy, with regard to both military action and natural disasters, depends upon timely communication of emergency information to the entire broadcast audience. The Commission might claim that a station not meeting FCC specifications cannot fulfill this role adequately. Nevertheless, in the event of an emergency, low-power neighborhood stations could be required to broadcast repeated instructions for listeners to tune their radios to designated mainstream stations. Again, such a regulation could be easily administered with micro radio broadcasters put on notice of such regulations through some notice procedure. Furthermore, in an emergency, it may be necessary for members of a community to communicate on a local level. Where larger transmitters are knocked off the air, as in an earthquake, micro radio broadcasts may enable members of a local community to quickly solicit emergency assistance as needed. Precisely because of their low power requirements (micro radio signals may be broadcast using a backup battery generator) micro radio broadcasts would be especially vital in the event of such an emergency. Again, regulations promulgated by the Commission could offer guidance as to when such broadcasts would be permitted. As the nearly uninterrupted operation of Black Liberation Radio has shown, micro radio provides a means for enhanced media diversity, thereby serving the public interest. Given the above arguments, the rationale for reduced First Amendment protection of micro radio must fail. Because no rational basis can support the elimination of micro radio broadcasts from the airwaves, any blanket prohibition on micro radio must be declared unconstitutional on its face. F. MICRO RADIO BROADCASTS MUST BE DISTINGUISHED FROM OTHER UNLICENSED BROADCASTS INVOLVING HIGH POWER TRANSMISSIONS WHICH THE COMMISSION SEEKS TO PROHIBIT. Previous cases concerning unlicensed radio broadcasts have come before the courts. However, these cases involved high-power broadcasts involving little political speech. As such, these cases may be distinguished from the operation of Black Liberation Radio and other micro radio stations. One such case, United States v. Weiner, 701 F.Supp. 14 (D.Mass. 1988), aff'd, 887 F.2d 259 (1st Cir. 1989), involved a high power unlicensed broadcaster who made and lost a First Amendment claim in federal court. [SEE APPENDIX 1]. Although the court in Weiner gave a cursory rejection to defendant's open forum and general First Amendment claims, the operation of Black Liberation Radio differs substantially from the facts in that case. Most significantly, the district court in Weiner emphasized that Weiner would still "be able to apply for a broadcast license on this band," Id. at 16. The court also noted that the FCC regulations did "not necessarily permanently eliminate an opportunity for the defendants to broadcast at such time as when a license may be granted to them." Id. at 17. To the extent that FCC regulations permanently prevent Kantako from applying for a license because he is too poor and operates at too low an Effective Radiating Power (ERP), Mbanna Kantako's First Amendment rights are more seriously abridged by the Commission's action. The facts regarding the unauthorized offshore broadcasts of Reverend McIntire in United States v. McIntire also resemble those in Weiner. The Reverend McIntire began transmitting radio broadcasts in September 1973 from a ship anchored three and one- half miles off the coast of New Jersey. These broadcasts were in response to FCC actions denying license renewal to WXUR-FM in Media, Pennsylvania based on fairness doctrine violations at that station. (See: United States v. McIntire, 365 F.Supp. 618, 620- 21 (D. NJ 1973); United States v. McIntire 28 R.R.2d 1000 (D.NJ 1973); United States v. McIntire, 370 F.Supp. 1301 (D.NJ 1974); and United States v. McIntire, 29 R.R.2d 883 (D.NJ 1974).) McIntire's broadcasts operated "as a direct challenge" to the authority of the United States to restrict radio broadcasts originating beyond U.S. territorial limits. United States v. McIntire, 29 RR 2d 883 (1974). In addition, these broadcasts interfered with the frequencies of several licensed AM radio stations, specifically stations located in Salt Lake City, Utah and Lakewood, New Jersey. United States v. McIntire, 365 F.Supp. 618, 621 (D.NJ 1973). Citing the International Telecommunications Convention as well as the overriding national interest in maintaining orderly use of the nation's airwaves, the court concluded that McIntire's broadcasts were adverse to the public interest. United States v. McIntire, 29 RR2d 883, 885. The maritime operation of unlicensed radio stations in Weiner and McIntire should be distinguished from the operation of Black Liberation Radio. First, the Weiner and McIntire cases each focused primarily on the issue of FCC authority over broadcasts originating from international waters. Black Liberation Radio's broadcasts are confined solely to an intrastate (indeed, intra-community) area traditionally beyond the regulatory grasp of the Commission's jurisdiction so long as no interference with interstate transmissions occurs. Furthermore, unlike those stations in McIntire or Weiner, Black Liberation Radio does not seek out a large audience, nor does it interfere with the signals of other licensed stations. Finally, although the court in Weiner reaffirmed that defendant was still in a position to apply for a broadcast license were he to cease broadcasting, Kantako is unable to procure a license legally. Were Kantako to apply for a license to operate Black Liberation Radio, the Commission would categorically deny this request inasmuch as no provision allows for the licensing of low power one watt FM stations (See FCC Public Notice No. 14089, July 24, 1991). It is also impossible for Kantako or other members of his community to apply for any high power FM license inasmuch as members of this low income community lack the financial resources to operate a 100 watt FM station pursuant to FCC rules. G. EVEN IF THE FCC MAY HAVE AUTHORITY TO SANCTION UNLICENSED 1 WATT RADIO BROADCASTS WHICH SUBSTANTIALLY INTERFERE OR ARE LIKELY TO INTERFERE WITH INTERSTATE BROADCASTS, ANY ORDERS TO CEASE AND DESIST ISSUED BY THE COMMISSION WITH RESPECT TO BLACK LIBERATION RADIO PURSUANT TO § 312(b) OF THE COMMUNICATIONS ACT ARE UNCONSTITUTIONAL AS AN ABUSE OF DISCRETION WHERE THESE 1 WATT BROADCASTS SERVE A NEGLECTED COMMUNITY AND OTHER REGULATORY ALTERNATIVES ARE AVAILABLE TO THE COMMISSION. The Commission's authority to order Black Liberation Radio to cease and desist pursuant to § 312(b) of the Communications Act is unconstitutional as an abuse of discretion where this 1 watt micro radio station serves the public interest and other regulatory alternatives are available to the Commission. Authority for this assertion is found in C.J. Community Services, Inc. v. FCC, 15 R.R. 2029 (D.C. Cir. 1957). Here the court held that the Commission was not required to issue a cease and desist order where unauthorized operation of an unlicensed booster station, which could cause some interference to authorized operations, broadcast television signals to the community of Bridgeport, Washington - a community which otherwise received no useable television signals. Id. at ____ (emphasis added). This unlicensed booster station transmitted "a usable signal to the town of Bridgeport, over a cone shaped area extending outward from the transmitter about 8 to 10 miles, or about 5 miles across at its widest point." Id. No application for licensing of this low power installation had been made, nor had the Commission issued a construction permit or license for the Bridgeport booster station. Id. In addition, no rules existed at the time for the licensed operation of such a booster station. Initially, the Commission in C.J. Community Services, Inc. ordered defendants to cease and desist from operating "television broadcast stations" without a license and from carrying on such operation "without a person holding an appropriate operator's license." Id. Defendants then challenged the order, arguing that they were not subject to FCC jurisdiction, and that even if they were, the Commission, in the public interest, erred in failing to exercise discretion to permit operation. Id. On appeal, the Examiner initially held that the Commission's abatement of this unlicensed booster station was not in the public interest. Id. In his findings, the Examiner declared that: the utilization of radio channels...are not impaired or threatened by the television booster station hereinabove discussed, and no other substantial reasons support a conclusion that the public interest, convenience and necessity would be served by issuing the proposed cease and desist order. Id. Although the Commission reversed the Examiner's conclusion that the cease and desist order "should" not issue, Id. at 2033, the D.C. Circuit court in C.J. Community Services later reversed the Commission's ruling. On the issue of jurisdiction, the court did find that the Commission had authority to regulate this unlicensed booster station. Id. at 2032. Although the unlicensed booster station in Bridgeport was found to radiate an amplified broadcast signal which did not transmit detectable energy or communications beyond the border of that State, Id. at 2030, jurisdiction was found because the booster station caused noticeable interference with the receptions of signals originating out-of-state. Id. at 2035 (Washington, concurring). Despite finding that the FCC had jurisdiction over this booster station, the court found that the Commission had ample discretion to withhold issuing a cease and desist order given this violation of the Act. Id. at 2033. The court observed that it was possible to telecast outside television signals into Bridgeport without objectionable interference. The court then noted that with respect to § 318 of the Act (requiring a licensed operator at the station), that the Commission may, in the public interest, make special regulations governing the granting of licenses for the use of automatic radio devices and for their operation. Id. Finally, the Commission was found to have ample discretion in withholding a cease and desist order under § 312(c) of the Communications Act. The court observed that under § 312(c), the Commission may consider grounds offered by a "person involved" in a § 312(b) complaint as to "why...a cease and desist order should not be issued." 47 U.S.C. § 312(c) (1989) (cited in C.J. Community Services, supra, at 2033. The court added that: Clearly the Commission must weigh the circumstances, for Congress says that the cease and desist "shall" be issued only if it be decided that the order "should issue." Congress knew very well what it was saying. It surely knew the difference between "should" and "shall." Id. In remanding the case, the court noted the inequity of defendants being subject to a cease and desist order when the Commission had failed to provide an administrative mechanism through which a license may be procured given the public interest involved. Id. The concurring justice also noted that the Commission would have been better advised to ignore the existence of low-power stations such as this until such time as the Commission was prepared to deal with the station operators on some basis more equitable than mere repression. Id. at 2035 (Washington, concurring). In light of the court's ruling in C.J. Community Services, Inc., it is clear that the Commission has ample discretion in determining whether or not a cease and desist order should issue with respect to the operation of Black Liberation Radio. As with Black Liberation Radio, no application for licensing of the low power Bridgeport booster station had been made, nor had the Commission issued a construction permit or license for the Bridgeport booster station. Id. Just as the Commission now prohibits all low power FM radio operations, the Rules and Standards at that time did not provide for the licensed operation of such a television booster station, nor did the rules allow for the issuance of such a license. Id. at 2030-31. Additionally, the low-cost amplifier in Bridgeport, which operated on a non- profit basis, was in marked contrast with the authorized CATV system which was prohibitively expensive at a cost of $28,000 in 1957. Id. at 2030. Similarly, the low power FM transmitter used by Black Liberation Radio is far less expensive to operate than a licensed Class D non-profit community radio station operating at a minimum 100 watts ERP. The expense of running such an authorized station would be especially prohibitive given the stark economic poverty of the community encompassed by the John Hay Homes and East Springfield. In C.J. Community Services, Inc. the court found that the unlicensed booster station served a compelling need in that it broadcast programming to an under-represented, under-served community. The court's decision in C.J. Community Services, Inc. shows that when a licensing scheme egregiously fails to serve the needs of a community, it violates the law. Because the Commission currently refuses to consider the operation of Black Liberation Radio within the context of an otherwise unserved community, its order that Black Liberation Radio cease and desist from all broadcast operations constitutes an abuse of discretion. Because the context surrounding Kantako's micro radio broadcasts differ significantly from that involving the high power unlicensed broadcasts in both Weiner and McIntire, those cases are inapplicable to the facts at hand. Instead, C.J. Community Services, Inc. is controlling, as that case more closely parallels the facts surrounding the operation of Black Liberation Radio. Like Bridgeport, residents of the John Hay Homes are unable to receive radio or television signals that directly address and serve the needs of this community. Particularly in light of the social, political and cultural information broadcast over this station, the Commission must focus upon the needs of the community and the content of Black Liberation Radio's broadcasts in evaluating "why a cease and desist order should not be issued." Id. at 2033. As in C.J. Community Services, Inc., the court here must strive to achieve a fair and equitable result. Such a result is particularly important given the First Amendment issues raised in this case, and inasmuch as "speech concerning public affairs...is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Other cases involving waivers of FCC regulations are also relevant here. In one case the Commission has waived allocation rules where the waiver would further the Commission's claimed policy of encouraging minority ownership and participation in broadcasting, as well as increase minority-oriented broadcast services, especially in areas with large minority populations. In Re Application of Por Favor, Inc., 68 F.C.C.2d 73, 74 (1978). The court in Por Favor found that a waiver was consistent with the Commission's stated policy of giving waiver requests a "hard look" based upon an applicant's minority ownership, management and programming. Por Favor, supra at 74 (citing AM Station Assignment Standards (Docket No. 20265), 56 FCC 2d 6, 35 RR 2d 151 (1975). Similarly, in another case an appeal from a denial of waiver was remanded on the basis that an applicant's identification with minority listeners is a factor to be considered in acting upon requests for waivers of the Commission's technical requirements. Garrett Broadcasting Services v. F.C.C., 168 U.S. App. D.C. 266, 513 F.2d 929 (1975). Finally, in Atlass Communications Inc., 61 FCC 2d 995, 39 RR2d 228 (1976), the Commission granted a request for waiver by the licensee of a daytime only Black-owned, operated and Black oriented broadcast station to permit acceptance of its application for nighttime operation. In each of the above cases, waivers of the Commission's licensing rules was granted in light of the minority-oriented services provided by the broadcaster. In these cases, the Commission determined that the public interest would best be served by the grant of a waiver. Given such precedent, a waiver of the existing FCC prohibition on 1 watt FM stations is also appropriate. Such a waiver would be in the public interest, particularly in light of the minority community served by the broadcasts of Black Liberation Radio. Other stations in the Springfield area have refused to broadcast similar political and cultural information, most likely out of a fear that such strident programming would alienate their mainstream listening audience, thereby lowering advertising revenues and leading to a loss of station income. Furthermore, even though the information broadcast over Black Liberation Radio may be unpopular with some segments of the Springfield community, it is forbidden to discriminate against any broadcast outlet merely because of their unpopular content. (cite early 1960s Supreme Court Pacifica case). Given the facts herein described, § 318 of the Communications Act and the court's previous rulings as described above, the FCC has clearly abused its discretion in not issuing a waiver of rules prohibiting the unlicensed broadcasting of 1 watt FM stations where these low power broadcasts serve the public interest and little objectionable signal interference results. III. THE COMMISSION'S PROHIBITION ON LICENSING OF LOW POWER FM MICRO RADIO BROADCASTS, AS APPLIED, CONSTITUTES A FORM OF PRIOR RESTRAINT AND THEREFORE IS AN UNCONSTITUTIONAL ABRIDGEMENT OF FIRST AMENDMENT PROTECTIONS. Restrictions on micro radio violate First Amendment principles where there is no valid justification for treating low power micro radio broadcasts differently from print media. Thus, failure to license or otherwise permit micro radio broadcasts is unconstitutional where there is unused space on the radio spectrum and low power access to the airwaves produces no objectionable interferes with other radio signals. Generally, any attempt to license a newspaper or magazine would violate the Constitution. In Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) the Court overturned a statute requiring a special use tax for paper and ink. Id. at 577-78. The Court overturned this statute in part because it targeted the print media and raised the specter of licensing. Id. at 582-83. Additionally, only an extraordinary government interest may be used to justify any prior restraint on the publication of any print media. See New York Times v.United States (Pentagon Papers case), 403 U.S. 713 (1971) (per curiam). However, because the airwaves are historically claimed to be a "scarce" resource, broadcast media are generally accorded less protection from government regulation than print media. Section 301 of the Communications Act of 1934 expressly states that "...No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio...except under and in accordance with this Act and with a license in that behalf granted under provision of this Act." 47 U.S.C. § 301 (1989). In addition, Justice Frankfurter has stated in National Broadcasting Co. v. United States, 319 US 190, (1943) that, "The right of free speech does not include, however, the right to use the facilities of radio without a license." Id. at 227. In National Broadcasting Co., the Court held that the licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. Id. Historically, the Court has justified FCC jurisdiction over the airwaves by focusing upon the need to regulate scarce broadcast frequencies. In National Broadcasting Co., the Court noted that "(u)nlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation." Id. at 226. Twenty-six years later, the Court again used the scarcity rationale, noting that even with advances in radio technology, demand for space on the spectrum had grown to the point where not all demands on the spectrum could ever be satisfied. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388-90 (1969). Typically, those alleging a scarcity of available radio frequencies point to the "chaos" that reigned over the airwaves prior to the passage of the Federal Radio Act of 1927. During this unregulated era, radio broadcasts frequently intruded upon the signals of other stations, producing interference and static over the airwaves. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 212 (1943); Red Lion, supra, at 375- 86; FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474 (1940). However, the justification for regulating airwave broadcasts based upon this scarcity theory has recently undergone significant criticism. See, e.g., Spitzer, The Constitutionality of Licensing Broadcasters, 64 NYU LR 990 (1989). Former FCC chairman Mark Fowler also rejected scarcity justifications for regulating broadcasting as the FCC pursued a policy of deregulation under his tenure. See: Fowler & Brenner, A Marketplace Approach to Broadcast Regulation, 60 Tex. L. Rev. 207 (1982). Furthermore, the Supreme Court observed that the prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism in recent years. F.C.C. v. League of Women Voters, 468 U.S. 364, 376 n. 11 (1984). In League of Women Voters, the Supreme Court explicitly invited Congress or the FCC to rule that technological developments have advanced so far that some revision of the system of broadcast regulation may be required. Id. Indeed, other nations have developed successful alternative methods of broadcast spectrum allocation which successfully permit low power micro radio broadcasts. These methods include Canada's experiments with 1 watt low power FM broadcasts and the results of an early 1980s Italian Supreme Court decision holding regulation of local broadcasting by the national government to be unconstitutional. In both instances, low power FM broadcasts were permitted with little resulting chaos or interference with emergency or other governmental services. Nevertheless, the Commission still maintains that spectrum scarcity should be irrelevant for First Amendment purposes does not affect its relevance to the Commissions allocational and licensing function. The Commission, of necessity, considers spectrum scarcity in making its allocational and licensing decisions. Syracuse Peace Counsel, 2 F.C.C. Rec 5043, 5069 n.204 (1987). However, today even the Commission acknowledges that the spectrum scarcity rationale has lost much of its credence and viability as justification for FCC regulation of broadcasting content. See, Id. As a consequence, the FCC should be estopped from justifying its failure to license low power radio broadcasts with these same spectrum scarcity justifications. Micro radio broadcasters use only a fraction of the radio spectrum to transmit a high quality signal heard within a distance of approximately one mile from the transmitter. An appendix to the Commission's own Report and Recommendations in the Low Power Television Inquiry (BC Docket No. 78-253) focused upon Canada's experiments with low power FM transmitters. This study indicated that these very low power systems do not create interference or spectrum crowding problems, provided they are operated with certain basic safeguards against interference to other services and that they provide a valuable local service. The major quality limitation is in the "programming itself", not the transmitter.... We recommend that the transmitter power of such VLPT's [very low power transmitters] be limited to one watt. This power level is capable of providing an adequate service to the small, remote communities in which such service applications are likely to arise. Id. (Executive Summary and Recommendations). Broadcasters who transmit micro-radio signals within their respective communities do not lay claim to a broad section of radio frequency. The communicative intent of micro-radio broadcasters such as Mbanna Kantako is to maintain a dialogue with those in the immediate community; listeners located approximately one mile from the micro-radio broadcaster's signal. As the appendix to the FCC's Report and Recommendations indicated, "Some communities are not satisfied with local rebroadcast of programs originating outside the community and want the technical means to originate programming locally according to local determination of need and interest." Id. In the case of Mbanna Kantako's Black Liberation Radio, this community constitutes 98% of the African-American population in the extremely segregated capital of Springfield, Illinois. Again, it should be noted that Kantako's micro radio broadcasts have caused no interference with other radio signals, nor impaired any governmental functions. However, while the technological feasibility of micro radio allows for low-cost instant communication involving important First Amendment issues, the FCC makes no provision for the utilization of this technology, thereby ignoring the potential of micro-radio in advancing the public interest, the Commission's public mandate under the Communications Act. This is in contrast to the Commission's own policy statements. The Commission has previously stated "(t)hat principles applicable to the government's regulation of a rapidly changing industry such as telecommunications should be revisited and revised in light of technological advances is not an unusual proposition." Syracuse Peace Council, 2 FCC Rec. 5043, 5052 (1987). In Red Lion Broadcasting the Supreme Court agreed, noting that advances in technology could have an effect on the judicial analysis of the constitutional principles applicable to the electronic media. Red Lion Broadcasting, at ____. In addition, the Court of Appeals in Meredith v. FCC noted that the Red Lion decision "was expressly premised on the scarcity of broadcast frequencies 'in the present state of commercially available technology' as of 1969." (cite). And yet, the Commission itself later allocated almost 700 additional stations to the FM band since that time. See: Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM Broadcast Assignments, 53 RR 2d 1550 (1983). In addition, a recent bill passed by Congress would have increased the amount of electromagnetic spectrum available to broadcasters, again decreasing the validity of the spectrum scarcity rationale. H.R. 2965, would have reallocated a portion of the spectrum previously reserved for government use. (FIND SUBSEQUENT HISTORY!!!). In Appendix 1 of the FCC's Report and Recommendations in the Low Power Television Inquiry (BC Docket No. 78-253) (1980?) are comparative documents which detail Canada's positive experiences with low-power broadcasting. In a report entitled "A Study of Very Low Power TV and FM Transmitters for Remote Communities" the authors suggest that rules be amended to allow for a sub-class of very low power FM broadcasting stations with Effective Radiating Power (ERP) up to 10 watts, which would typically use a transmitter power of about 1 watt. To avoid interference, the report suggests that: the principle technical limitation on such operations should be a requirement that a suitable channelizing or low pass filter be used to limit radiation of harmonics which could be harmful to nearby television or other telecommunications services.... We would recommend limitation of harmonic radiation because of the possibility of interference to television services in the same or nearby communities. It is likely that CATV class FM modulators and power amplifiers would be used in such service. Id. at 21. The report goes on to state that: [Very low power transmitters] for FM radio should have effective means of reliably maintaining frequency stability. This stability need not be the 1 KHz required [in Canada] of full scale FM broadcast transmitters but could be relaxed to as much as 100 KHz without any harm being done, so long as there is assurance of effective limitation of radiation that might affect other services. Id. at 49. Furthermore, the report adds that: We expect few problems with the quality of the overall service in locally originated very low power FM radio services. Audio equipment of good quality is not expensive and the licensees of such stations should not have the kind of problems which face TV operations in similar circumstances. Good quality microphones are substantially less than $100 in cost. Good quality audio tape recorders can be purchased for a very few hundred dollars. Monitoring and audio control equipment is similarly reasonably priced. Acceptable quality is so much easier and cheaper to achieve in radio than in television we expect the [Canadian Radio and Television Commission] may wish to consider encouragement of local community radio as a precursor to [low power] television in communities in which expression of local interests is the principle reason for new low power broadcast services. Radio is very cost effective - "more bang for the buck." Id. at 22. The FCC would have little trouble in regulating micro radio broadcasting stations. In Appendix 1 to the Commission's Report and Recommendations focusing on low power television is the Canadian Department of Communications' study of very low power FM transmitters, which recommended that application forms and required information be simple enough to allow for easy application by potential low power licensees. Id. at 50. Samples of such applications were included, along with rules governing broadcasts on low power micro radio stations. This information is included here as Exhibit 1 (see attached). These forms request operational information (name of licensee, address, etc.), technical information (frequency/channel, antenna location, type of equipment, etc.) information concerning the community being served, and statements as to how operation of a low power transmitter will serve the needs of this community. A cursory examination of Exhibit 1 indicates that the licensing and administrative requirements necessary to oversee operation of micro radio stations are not burdensome. Indeed, these licensing forms reveal that micro radio can easily be regulated so as to prevent signal interference, and that rules which prohibit the operation of micro radio where there is a compelling need are an arbitrary exercise of the Commission's powers which fail to advance the public interest. Given the limited broadcast radius of micro radio and the fact that this technology enables citizens to broadcast over open radio frequencies with no objectionable interference with licensed broadcast signals, the FCC should adopt policies that would foster such use. Because access to politically and culturally relevant micro radio broadcasts is in the public interest, and because the Court has emphasized that it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount, FCC rules prohibiting access to micro radio broadcasts unconstitutionally impairs the First Amendment rights of micro radio broadcasters such as Mbanna Kantako along with their community of listeners. IV. THE GOVERNMENT SHOULD BE ESTOPPED FROM PROHIBITING BLACK LIBERATION RADIO'S BROADCASTS IN THAT THESE BROADCASTS HAVE BEEN TACITLY PERMITTED BY THE GOVERNMENT SINCE APRIL 1989. Mbanna Kantako began broadcasting community-oriented radio programs over a one-watt FM radio station from his apartment on November 23, 1988. On April 5, 1989 a representative of the FCC ordered Kantako to cease broadcasting. Kantako complied with the FCC order for 11 days, until April 17, 1989, when he again resumed broadcasting. The FCC ultimately brought this matter before a Federal Judge to obtain a judgment against Kantako in the amount of $750. Kantako's request for an attorney was refused on the grounds that the FCC violation involved a civil, not a criminal, penalty. Kantako consequently refused to participate in any further proceedings and judgment was issued against him for $750. Mbanna Kantako resumed broadcasting on April 17, 1989. Black Liberation Radio has continued to operate since that date, despite the outstanding $750 fine ordered by the Federal courts. Although Kantako attempted to have the Springfield police arrest him for illegal broadcasting, they refused. When they declined, Kantako went to the Federal Building in downtown Springfield, where he was again refused arrest. All other attempts to get arrested have also been refused. Although the FCC issued another shutdown order on March 30, 1990, Kantako has continued to broadcast with no governmental interference. Because of Kantako's continued uninterrupted broadcasts, the Commission must be estopped from shutting down Black Liberation Radio for subsequent political speech... [cite Estoppel arguments; see Watkins, etc.] V. FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM ARE UNCONSTITUTIONAL; THEREFORE FCC ACTIONS TAKEN PURSUANT TO § 308(B) OF THE COMMUNICATIONS ACT WHICH EXCLUDE THE POOR ARE UNCONSTITUTIONAL ON THEIR FACE. The Commission requires that applicants for new radio broadcast stations demonstrate the ability to construct and operate the station for three months, without relying upon advertising or other revenue to meet these costs. Financial Qualifications standards of aural broadcast applicants, 69 F.C.C. 2d 407 (1978). The Commission has alleged that this policy would specifically benefit minority applicants seeking entry into the radio broadcast service inasmuch as station financing has been a principal barrier to minority broadcast ownership. Id. Nevertheless, the Commission's financial requirements are discriminatory on their face because they prevents the poor from exercising a fundamental right - the right to freedom of expression as guaranteed by the First Amendment. Furthermore, the application of this financial barrier works to discriminate against minorities who lack the $50,000 to $100,000 necessary to operate a station at a loss for three consecutive months. This is particularly true of micro radio broadcasters such as Mbanna Kantako who are denied access to the airwaves despite their ability to engage in effective low-cost radio programming. As a result, the Commission's rule denies underrepresented poor and minority communities any effective voice over the broadcast media, thereby violating their right to impart and receive communication over the public airwaves. In a variety of contexts the Supreme Court has made clear that the disabilities of indigency need not be overcome by government, see e.g. Harris v. McRae, 448 U.S. 297 (1980) (abortion funding), Ross v. Moffit, 417 U.S. 600 (1974) (criminal justice). Thus, neither the right to welfare, Dandridge v. Williams, 397 U.S. 471 (1970), housing, Lindsey v. Normet, 405 U.S. 56 (1972), or education, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), constitutes a fundamental constitutional right. But it is equally true that it is forbidden for government to exclude a person because of indigency from the exercise of a fundamental constitutional right. Thus while a person's lack of resources may limit a person's ability to travel interstate, it cannot limit the right to travel, Edwards v. California, 314 U.S. 160 (1941), or the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or to be a candidate in an election to public office, Bullock v. Carter, 405 U.S. 134 (1972), Lubin v. Panish, 415 U.S. 709 (1974). The same principle is applicable to the First Amendment. The complete exclusion of the poor from a First Amendment forum because of government criteria which make the exclusion turn on qualifications of wealth offends the principles of equality on which the constitutional administration of any First Amendment forum depend. Carey v. Brown, [cite...], Police Department of Chicago v. Mosley, [cite...]. Because of its essential connection to the political process the First Amendment is called "the matrix . . . of nearly every other form of freedom," (Cardozo, J. in Palko v. Connecticut, 302 U.S. 319 (1937)), and freedom of communication cannot be compromised without compromising every other right. All groups in the community depend on the First Amendment to make their interests known and to shape them into law; if any group is excluded then they are to that extent excluded from the law making process. Plainly speech is essential to self-government and a polity excludes the poor from a public forum at its peril. Moreover dignity for the common person today depends on his or her ability to decide for him or herself the merits of every public issue, and there can be no deliberation or judgment without freedom of communication. Governmental exclusion of the poor from a forum as decisive as radio because of indigency constitutes an official assault on their social and political worth as members of the community and on their dignity as citizens. Historically the First Amendment was adopted to eliminate financial qualifications for speech. John Adams wrote that the Stamp Act imposed on the American colonies by Britain showed "a design . . . to strip us, in a great measure, of the means of knowledge, by loading the press, the colleges, and even an almanac and a newspaper, with restraints and duties," (quoted from "Our Blood-Bought Liberty" in Neisser, "Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas," 74 Georgetown L. J. 257 (198_). In fact the Stamp Act was first introduced in England in the early 17th century after Parliament refused to renew the Licensing Act to serve a similar purpose. The Crown frankly acknowledged that the purpose of the Licensing Act was not to raise revenue but to suppress writings critical of the government. The Anti-Federalist challenge to the ratification of the Constitution was conscious of this history and insisted on a Bill of Rights to prevent government from "imposing duties on every instrument of writing." Neisser concludes: English suppression of religious, political, and literary dissidents evolved from book-burning, to licensing, to taxing. Taxes on paper, publications, and advertisements were intended as a means of suppressing critics once licensing was no longer politically acceptable, and these taxes effectively suppressed the inexpensive mass circulation publications. The Framers were acutely aware of the risks of taxation of expression . . . . Furthermore, the Founders did not enact such taxes after the First Amendment was adopted. The current Court has confirmed this heritage in Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 103 U.S. 1365 (1983), invalidating a Minnesota use tax on the press. This case reaffirms the principle that financial burdens cannot be made a governmentally imposed prerequisite to the exercise of First Amendment rights. The potential for abuse, the Court reasoned, was too severe. In spite of this history, § 308(b) of the Communications Act of 1934 provides that: All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and any other qualifications of the applicant to operate the station . . . Given the nature of any public forum, perhaps those with financial ability may be subject to fees to a limited extent. See, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941). However, financial qualifications can no more be made a governmental precondition to the use of a First Amendment forum than they can be made a precondition to candidacy for public office. See, Lubin v. Panish, [cite...] and Bullock v. Carter, [cite...]. For this reason ordinances requiring a threshold percentage of contribution to be used for charitable purposes as a precondition to solicitation in the public forum, have been invalidated. See, Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), Secretary of State v. Joseph H. Munson, Co., 467 U.S. ___ (1984), and Riley v. National Association for the Blind, 487 U.S. 781 (1988). Such provisions may foreclose solicitation by those without funds to defray the administrative cost of the activity. Similarly rules and regulations imposed under § 308(b) of the Communications Act foreclose the possibility of any applicant receiving a license without tens of thousands of dollars of capital as an absolute minimum, and station licenses are commonly marketed for millions. Yet broadcasters like Mbanna Kantako have shown that effective use of the spectrum can be made without an eye to profit and as a form of community expression for as little as a few hundred dollars. Government forbids this, not because of interference with existing users or because spectrum space is unavailable, but because micro radio broadcasters lack sufficient capital to meet the FCC's threshold requirements. One need not be as sensitive as the Founding Fathers to the conditions underpinning the struggle for liberty to suspect that communication mergers priced at $370 million (Gannet-Combined), $3.5 billion (Capital Cities-ABC), and $6 billion (GE-RCA) (see, Carter, Franklin and Wright, The First Amendment and the Fifth Estate, p. 176-78) generate broadcasters with a stake in the established order, in its assumptions and values, and in its distribution of wealth and power. See also, Bagdikian, "Lords of the Global Village," The Nation, June 12, 1989 at __. As Justice Brennan once noted: [I]n light of the strong interest of broadcasters in maximizing their audience, and therefore their profits, it seems almost naive to expect the majority of broadcasters to produce the variety and controversiality of material necessary to reflect a full spectrum of viewpoints. Stated simply, angry customers are not good customers and in the commercial world of mass communications, it is simply "bad business" to espouse - or even to allow others to espouse - the heterodox or the controversial. As a result, even under the [now disregarded] Fairness Doctrine, broadcasters generally tend to permit only established - or at least moderated - views to enter the broadcast world's "marketplace of ideas." Columbia Broadcasting Sys., Inc. v. Democratic National Committee, 412 U.S. 94, 187-88 (1973) (Brennan, dissenting). Under the First Amendment, existing broadcast licensees have a right to turn wealth to speech. But the same First Amendment must assure popular critics of government without such resources a place in the forum also. It cannot add to the influence of wealth the trump of official exclusion. Mbanna Kantako and other micro radio practitioners are today's popular pamphleteers, 20th century dissidents whose imaginative and resourceful use of small means is suppressed by government imposition of financial qualifications. General Electric could buy this equipment for one ten-millionth of the cost of RCA and still overpay. Must the Commission and the Department of Justice also prevent this speech? Congress and the FCC may make reasonable rules to govern the FM band just as government may do with any First Amendment forum for which it has responsibility, but it may not exclude Mbanna Kantako from that forum by making financial qualifications a precondition to access. VI. WHERE UNUSED SPECTRUM SPACE EXISTS, FCC RULES WHICH EXCLUDE A BROADCASTER WITHOUT FUNDS ARE UNCONSTITUTIONAL IN THAT THEY ARE NEITHER NARROWLY DRAWN NOR GROUNDED IN A COMPELLING GOVERNMENTAL INTEREST. Because broadcast frequencies are considered a scarce resource, the Supreme Court in 1983 did not apply a "compelling governmental interest" standard to government regulation of the editorial content of a licensed broadcaster. Nevertheless, the Court applied a scrutiny only marginally less exacting and found a Congressional prohibition on editorializing by noncommercial broadcast licensees to violate the First Amendment, FCC v. League of Women Voters, [cite...]. But because the Constitution does not permit the total exclusion of the poor from the exercise of a fundamental constitutional right because of indigency, the highest standard of strict scrutiny must be applied to test any such restrictions, as Kramer v. Union Free School District, supra, and Carey v. Brown, supra, for example, require. The standard of strict judicial scrutiny of governmental activity requires that governmental action be designed to accomplish a compelling governmental interest and that the means chosen to accomplish that interest be narrowly drawn for that purpose. By any standard the government can demonstrate neither a compelling interest nor a carefully chosen means to justify the total exclusion of the poor from the FM band of the electromagnetic spectrum. The justification for regulation of the First Amendment fora created by the broadcast spectrum is the potential for broadcast interference and the scarcity of broadcast frequencies, National Broadcasting Company v. United States, 319 U.S. 190 (1943), Red Lion Broadcasting Co. v. FCC, supra, FCC v. League of Women Voters, supra. Yet Kantako's one watt station interferes with no broadcast use. The FCC did not take action against Mbanna Kantako because of interference with any other broadcaster. His broadcast displaced no licensee, caused no cacophony, no anarchy. While a small potential for interference may exist, micro radio broadcasters are by definition those who broadcast with very meager resources, and with broadcast capabilities quite limited in their ability to intrude on broadcast space. In addition, there are vast regions of the United States where for mile after mile substantial portions of the FM band are unused, yet the poor are denied access to these frequencies also. There can be no justification for such exclusions. Nor are such exclusions narrowly drawn. In any consideration of the relationship of means to ends, there must inevitably be an evaluation of alternatives. Narrow is a relative term and depends on available comparisons. Here, penalties may be imposed for actual interference, or in the alternative, and under the compulsion of the Constitution, a portion of the forum may be set aside for the indigent, thereby avoiding all possibility of interference with other licensees. Such space exists. In 1984 the FM band was expanded with nearly 700 new stations added. See: Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM Broadcast Assignments, 53 RR 2d 1550 (1983). A portion of such space might be made available to the poor. These are matters readily within the discretion and expertise of the Commission once Constitutional guidelines prohibiting government exclusion because of indigency have been unambiguously announced. The Court in Red Lion stated over 20 years ago that "if experience with the administration of these doctrines [the fairness doctrine] indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications." Red Lion, supra, at ___. But there has been time enough to know that the poor are excluded from the spectrum. As a result, a portion of the radio spectrum must be set aside to allow this class to engage in meaningful dialogue over the airwaves. Only in this way can the First Amendment rights of this class of persons be properly protected. VII. THE CIVIL RIGHTS OF RACIAL AND ETHNIC MINORITIES IN THE UNITED STATES ARE UNCONSTITUTIONALLY VIOLATED BY FINANCIAL QUALIFICATIONS WHICH COMPLETELY EXCLUDE THE POOR FROM THE USE OF THE FM BAND OF THE ELECTROMAGNETIC SPECTRUM PURSUANT TO SECTION 308(B) OF THE COMMUNICATIONS ACT. IN PARTICULAR, BECAUSE THEY ARE PART OF HISTORICAL PATTERNS AND PRACTICES OF THE FCC WHICH DISCRIMINATE AGAINST MINORITIES. Besides discriminating against the poor, the Commission's suppression of micro radio discriminates against minority broadcasters and listeners. Because FCC regulations prohibiting the operation of micro radio have a disproportionately adverse affect on broadcasting diversity, these provisions unconstitutionally impair the rights of minorities to engage in their fundamental rights of free expression. The Supreme Court now proclaims that the applicable test for constitutionality under the equal protection clause is as follows: (O)fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.... Once racial discrimination is shown to have been a "substantial" or "motivating" factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor. Hunter v. Underwood, 471 U.S. 222, 227-28 (1985) (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)). However, even under this more stringent test, the Commission's behavior with respect to minority broadcasters has consistently reflected the "substantial" goal of racial discrimination. In particular, the Commission's policy towards micro radio ratifies previous discriminatory behavior by the Commission, and prevents African American broadcasters such as Mbanna Kantako from communicating with their respective communities. See, L. Rodriguez, "Rappin' in the Hood," The Nation, 193, Aug. 12/19, 1991 (detailing harassment of other African-American micro radio broadcasters). A brief history of the Commission's pattern and practice of discriminatory behavior is described here in order to provide the context within which FCC prohibitions against micro radio operate. A. FCC AND RACISM IN BROADCAST REGULATION [SEGMENTS OF TEXT COPIED FROM "COMMENTS OF NAACP AND LULAC," GC DOCKET NO. 92-52] In perhaps no other task is the Commission's public interest mandate more fundamental than in the issuance of new broadcast licenses. This is the means by which non-minorities, exclusively, won the rights to the most valuable licenses essentially without cost at a time when legal segregation still reigned. During that time, it would have been unthinkable for minorities to have had the temerity even to apply for a broadcast permit. To understand why, some historical context is necessary. The NAACP and LULAC have previously observed that: Until about the mid-1970s, the FCC openly tolerated and ratified discriminatory action by its licensees. It routinely provided broadcast licenses to colleges and universities which were totally segregated (eg., WBKY-FM, University of Kentucky, licensed in 1941; WUNC-FM, University of North Carolina, licensed in 1952; KUT-FM, University of Texas, licensed in 1957, among many others). In this way, the FCC endorsed and facilitated segregated broadcast education, thereby giving Whites a substantial headstart in access to broadcast employment. Southland Television Co., 10 RR 699 (decided 1955, reported 1957), recon. denied, 20 FCC 159 (1955) illustrates the Commission's racial policies at mid-century. The FCC had before it a Shreveport TV station applicant who segregated movie theatres. This man had built his movie theatres without balconies to circumvent a Louisiana law which allowed the admission of Blacks as long as they sat in the balconies. He even owned a segregated drive-in theater; all the other drive-ins were integrated (at least as to admission, although not as to the occupants of the automobiles). The FCC held that it lacked evidence that "any Louisiana theatres admit Negroes to the first floor" of theatres, nor any evidence that "such admission would be legal under the laws of the state." Id., 10 RR2d at 750. Thus, the FCC gave full faith and credit to state segregation laws and to broadcasters' deliberate efforts to evade even the weakest state laws permitting some integration. Comments of NAACP and LULAC, 6-7, GC Docket No. 92-52, dated June 2, 1992. When faced with broadcast cases arising out of the civil rights movement, the FCC's decisions also reflected a continuing pattern of discriminatory policies and practices: In Broward County Broadcasting, 1 RR2d 294, 296 (1963), the Commission set for hearing the license of a small Florida station which proposed to address a small portion (17%) of its programming to the Black community. The reason: local White citizens had complained that the station was licensed to an all-White town which didn't need that type of music. When the station dropped the programming, the FCC quietly dropped the charges. Two years later, in The Columbus Broadcasting Company, Inc., 40 FCC 641 (1965), the Commission was faced with a radio licensee who had used his station to help incite the riot which took place at the University of Mississippi when James Meredith attempted to enroll. The Commission merely admonished the station. The Federal courts soon became impatient with the FCC's racist policies. In the landmark case of Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) ("UCC I") the Court of Appeals ordered the FCC to hold a hearing on the license renewal of a Jackson, Mississippi station, WLBT-TV, which only broadcast the White Citizens Council/Ku Klux Klan viewpoint on racial matters, and went so far as to censor its own NBC network news feeds with a "Sorry, Cable Trouble" sign when NAACP General Counsel Thurgood Marshall was being interviewed. This case was highly significant because it upheld, for the first time, the principle that individual citizens, because of their investment in television and radio receivers, have standing to challenge television and radio licenses. After a very one-sided hearing in which the FCC renewed WLBT-TVs license again, the Court ordered the FCC to deny the license renewal. The Court has never before or since taken such an action, but this time it held the administrative record to be "beyond repair." Office of Communication of the United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969) ("UCC II"). Only after a further hearing lasting eleven more years, a company headed by Aaron Henry, President of the Mississippi State Conference of [NAACP?] Branches, won the license. Comments of NAACP and LULAC, 7-8, GC Docket No. 92-52, dated June 2, 1992. The NAACP and LULAC have observed that in spite of an anti- discrimination policy adopted by the FCC, the Commission applied this policy only haltingly and sporadically: In Chapman Television and Radio Co., 24 FCC2d 282 (1970), the FCC had before it an applicant for Birmingham, Alabama TV Channel 21. That applicant, a man who owned part of the stock in a Birmingham cemetery, had participated in the cemetery's 1954 decision to exclude Blacks. The cemetery's policy came to light when the cemetery turned away the body of a Black war hero. Yet the Commission found "extenuating circumstances" in the applicant's claim that the cemetery would have been sued by White cemetery plot owners. The FCC ordered hearing only into why the applicant had covered the matter up, not into whether a practicing segregationist had the moral character to be a federal licensee. Even the cover-up allegations were thrown out by the Hearing Examiner, who held that "in today's climate it is not at all an oddity for political leadership to appear to buckle before irresponsible and only half true racism charges." Chapman Radio and Television Co., 21 RR2d 887, 895 (Examiner 1971). Chapman was not an anachronism. Long before minorities owned or applied for broadcast licenses, the FCC openly discriminated on the basis of national origin. In 1938, in what would now be seen as a clear violation of the First Amendment, the Commission rejected the only applicant for a radio license, holding that "the need for equitable distribution of [radio] facilities throughout the country is too great to grant broadcast station licenses for the purpose of rendering service to such a limited group [of speakers of foreign languages]...the emphasis placed by this applicant upon making available his facilities to restricted groups of the public does not indicate that the service of the proposed station would be in the public interest." Voice of Detroit, Inc., 6 FCC 363, 372-73 (1938). See also Chicago Broadcasting Ass'n, 3 FCC 277, 280 (1936), Voice of Brooklyn, 8 FCC 230, 248 (1940). These pre-World War II cases involving, inter alia, Yiddish language programming probably reflect anti-Semitism. The programming was largely intended for Jewish immigrants who had fled Germany and Poland. It surely reflected a climate in which none but WASPs could hope for access to the airwaves. In this atmosphere, it would have been unthinkable for Blacks or Hispanics to seek broadcast licenses. Indeed, the Commission later directly imposed its Voice of Detroit regime on those seeking to serve Black audiences. In 1360 Broadcasting Company, 36 FCC2d 1478 (Rev. Bd. 1968), the Commission refused to waive a minor technical rule to allow a first nighttime radio service to 98.1% of Baltimore's Black community. Review Board Member Joseph Nelson dissented, pointing out that the Commission "has granted waivers or found substantial compliance with the rule where coverage was less than 100%" (citing cases, all involving new service to Whites, where proposed coverage would have been 90.2%, 95% and 90.6%). Yet the Commission persisted in this deliberately discriminatory licensing policy. See Mel-Lin, Inc., 22 FCC2d 165 (1970), (Jacksonville, Florida); Champaign National Bank, 22 FCC2d 790 (1970) (Champaign, Illinois). Comments of NAACP and LULAC, 8-11, GC Docket No. 92-52, dated June 2, 1992. The NAACP and LULAC have also noted that: In United Steel Workers v. Weber, 443 U.S. 193 (1979), the Supreme Court held that exclusion of minorities from crafts on racial grounds was so well known it could be judicially noticed. While broadcasting is a much smaller industry than steelmaking, the history of minority exclusion from broadcast employment has been so well known that it hardly bears repeating. See U.S. Commission on Civil Rights, Window Dressing on the Set (1977); Report of the National Advisory Commission on Civil Disorders, supra, at 383-84 (finding that in journalism in 1968, fewer than 1% of management employees were Black, and most of these worked in Black owned organizations). Nonetheless, despite hundreds of EEO complaints, only once, in Catoctin Broadcasting of New York, 4 FCC Rcd 2553, 2558 (subsequent history omitted) has the FCC found that a licensee engaged in discrimination. The D.C. Circuit has repeatedly been critical of the FCC's failure to enforce its EEO Rule. Beaumont Branch of the NAACP v. FCC, 854 F.2d 342 (D.C. Cir. 1986); Bilingual Bicultural Coalition on the Mass Media v. FCC, 556 F.2d 59 (D.C. Cir. 1977). Indeed, minority representation in broadcast employment remains...far [below] parity with the representation of minorities in the population. See FCC Broadcast EEO Trend Reports, 1975-90. Comments of NAACP and LULAC, 18, N. 6, GC Docket No. 92-52, dated June 2, 1992. Additionally, in 1977 a legal study found that the Commission's EEO requirements were "vague, variable, evasive and easily met, even by broadcasters who actively discriminate," and that FCC regulations fell below the standards set by federal courts that deal with the legislation governing EEO. N.A. Bowie and J.W. Whitehead, "The Federal Communications Commission's Equal Employment Opportunity Regulation - An Agency in Search of a Standard," 5 Black Law Journal 313 (1977). Furthermore, statistics compiled by the National Association of Black Owned Broadcasters (NABOB) show that in 1980 African Americans owned 1.57% of all radio stations. In 1991, that percentage had grown to only 1.64%. In re Revision of Radio Rules and Policies, 7 FCC Rcd 2755, 2814, N. 12 (1992) (Statement of Commissioner Andrew C. Barrett dissenting in part and concurring in part). The above history reveals that current FCC policies actively reinforce a long history of past discriminatory behavior. By institutionalizing the past discriminatory behavior which resulted in the current paucity of stations owned by minorities, the Commission has engaged in unconstitutional behavior. See Columbia Board of Education v. Denick, 443 U.S. 449, 458-59 (1979) (14th Amendment requires abandonment of policies which reinforce present effects of past discrimination). B. CURRENT FCC POLICY REGARDING MINORITIES, BROADCASTING AND DIVERSITY IN PROGRAMMING. The FCC's minority policies were initially conceived with the claimed objective of fostering broadcast content diversity, rather than remedying any past discrimination suffered by minorities. See, Kleiman, "Content Diversity and the FCC's Minority and Gender Licensing Policies," 35 J. of Broadcasting & Electronic Media, 411, 413 (Fall 1991). In 1971, the court noted the need for diversity of ownership, asserting that diversity of ownership was directly related to program content. Citizens Communication Center v. FCC, 447 F.2d 1201 (DC Cir. 1971). The court noted that "as new interest groups and hitherto silent minorities emerge in our society they should be given some stake in and chance to broadcast on our radio and television frequencies." Id. at 1213. The Commission later released its Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 FCC 2d 979 (1978) which claimed to find no overt discrimination, but cited significant barriers to minority entry into broadcasting. The Commission's current policy towards achieve programming diversification is to foster its minority ownership policies and Equal Employment Opportunity (EEO) rules rather than through direct regulation of programming. Deregulation of Radio, 84 FCC 2d 968, 977, recon. granted in part, 87 FCC2d 797 (1981) aff'd in pertinent part sub nom. Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983). The House Conference Committee Report adopted in 1982, when Congress affirmed its support for the distress sale policy , stated that: An important factor in diversifying the media of mass communications is promoting ownership by racial and ethnic minorities - groups that traditionally have been extremely underrepresented in the ownership of telecommunications facilities and media properties. The policy of encouraging diversity of information sources is best served by not only awarding preferences based on the number of properties already owned, but also by assuring that minority and ethnic groups that have been unable to acquire any significant degree of media ownership are provided an increased opportunity to do so. H.R. Conf. Rep. No. 765, 97th Cong., 2d Sess. 40, 43 (1982). See also S. Rep. 182, 100th Cong., 1st Sess. 76 (1987) ("Diversity of ownership results in diversity of programming and improved service to minority and woman audiences."). And in Metro Broadcasting, Inc. v. FCC, 110 S.Ct. 2997 (1990) the Supreme Court, in upholding the Commissions's policy permitting distress sales to minority broadcasters, held that the promotion of minority ownership and implementation of the FCC minority ownership policies serves an important national interest. In upholding this regulation, the Court noted that Congress had mandated that the FCC pursue these policies. The Court also noted that the benefit of increased minority ownership redounds to all Americans, not just minorities. Id. Thus, the Commission claims that it promotes minority ownership by allowing preferences for minorities in lottery licensing, Amendment of the Commission's Rules to Allow the Selection from among Certain Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 91 FCC 2d 74 (1982) and by allowing minority-controlled stations to be excepted in the Commission's multiple ownership rules. Amendment to Section 73.3555 of the Commission's Rules Relating to Multiple Ownership of AM, FM and Television Broadcast Stations, 100 FCC 2d 74 (1985). Yet these policies have produced little improvement, and some policies, such as the minority exception with regard to multiple ownership, are in the process of being repealed. Thus, while the Commission asserts that "[e]fforts to promote minority ownership [citing Statement of Policy on Minority Ownership of Broadcast Facilities, supra] and EEO are underway and promise to bring about a more demographically representative radio industry," little programming or ownership diversification has actually resulted from these policies. In fact, current FCC regulations promoting broadcast diversity differ significantly from those which previously served the broadcast industry through an earlier era of rapid broadcast development. Compare En Banc Programming Inquiry 44 FCC 2303, 2314 (1960) and Public Service Responsibility of Broadcast Licensees 15 (March 7, 1946) (the "Blue Book") (claiming each station is expected to serve minority groups). While the Commission claims that it has sought to enhance programming diversity by promoting minority ownership, studies reflecting minority ownership in radio and TV reveal that these policies have been a dismal failure. As Commissioner Barrett has himself noted, no distress sales have been granted to minorities since 1988, and only 38 have been granted since the inception of the policy. In re Revision of Radio Rules and Policies, supra, 2815 (Statement of Commissioner Andrew C. Barrett dissenting in part and concurring in part). In addition, the issuance of tax certificates has decreased dramatically since 1990. Id., at Appendix 2. Almost all relevant statistical indexes reveal that the Commission has failed to promote broadcast diversity through its minority ownership policies. In 1972, African American ownership of stations was less than 20 of the 7,000 licensed radio stations, and no TV stations. "Coming Through the Front Door of Ownership: A New Direction for Blacks in Broadcasting," Broadcasting, 35-8, Oct. 25, 1972. From 1976 to 1981, when the FCC claimed to be seriously committed to increasing minority ownership, the number of African American owned radio stations grew from 30 to 141. However, from 1981 to 1991 when the Commission pursued its policy of deregulation, the number of radio stations owned by African Americans rose from a figure of 141 to only 182. In re: Revision of Radio Rules and Policies, supra, 2769[?], N. 63. When looked at as a percentage of all radio station ownership, these figures reveal that only 2% of all FM stations are owned by African Americans. From 1990 to 1991...the percentage of minority owned broadcast stations has actually declined from its already inconsequential level. The decline was particularly serious with respect to radio broadcasting. The gross number of minority owned stations declined from 173 to 165 for AM, and from 99 to 91 for FM. Expressed as a percentages of all stations, minority ownership declined from 3.5% to 3.3% for AM, and from 2.3% to 2.0% for FM. The figures for Hispanic ownership are equally discouraging, dropping from 1.3% to 1.2% for AM, and from .6% to .5% for FM. A Statistical Analysis of Minority-Owned Commercial Broadcast Stations Licensed in the United States in 1991, prepared by the U.S. NTIA. Petition for Reconsideration of the League of United Latin American Cities (LULAC), 20, MM Docket No. 91-140, May 29, 1992. In fact, while the broadcasting industry increased in size, the number of minority owned commercial broadcast stations declined in 1991 from 301 to 287, a drop of 4.7% See Report on Minority Broadcasting Trends, NTIA (November 1991). Minority owned stations are predominantly among the smaller stations in their markets, in terms of ratings and profits. As a result, the numbers of minority owned stations will likely decrease significantly once the Commission implements its current Report and Order raising ownership limits to 60. See infra at ... The outlook for minority broadcasters appears particularly bleak in light of previous Commission practices reaffirming discriminatory patterns in the broadcasting industry, and in light of the Commission's current approach towards broadcast deregulation. Given all of the above, it is not surprising that the Commission's half-hearted attempts at promoting minority diversification in broadcasting over the last several years have failed. C. IMPACT OF RECENT FCC POLICY ON MINORITY BROADCASTERS 1. DEREGULATION OF BROADCASTING In 1981, the Commission began the process of broadcast deregulation. Deregulation of Radio, supra, at ___. Broadcast deregulation continued throughout the 1980s, and the policy goals of deregulation inform the Commission's current policies. Mbanna Kantako began his unlicensed micro radio broadcasts over WTRA (subsequently, Black Liberation Radio) during this period of rapid broadcast deregulation. Kantako's actions were significant, in that broadcast deregulation increased the need for programming diversity in communities such as Springfield, where minority needs are otherwise unmet by the mainstream media. Deregulation of the broadcast industry has resulted in a stark reversal of previous Commission policy. Because deregulation has decreased minority representation in the broadcast industry, it has had a discriminatory impact on minority groups. As the above statistics indicate, the impact of deregulation has seriously damaged the interests of minority broadcasters and their audience. In spite of FCC assurances, programming diversity has suffered. This reversal has occurred for many reasons. By assuming the marketplace would respond to needs of the community of listeners, the Commission ignored commentators who argued that advertisers do not value all listeners equally. Deregulation of Radio, supra, at 1033. These commentators noted that broadcasters program for audiences likely to purchase advertised goods, and that these demographic groups seldom represent the wants and needs of racial and ethnic minorities and the elderly. Id. These commentators also noted that licensees responding to marketplace forces would not respond to low income listeners because advertisers consider them commercially insignificant. Id. The Commission's response to these arguments was merely to cite studies showing that low income families and African Americans are more name-brand conscious in their buying habits. Id. at 1033-35. The Commission asserted these findings showed that Black formatted stations would have an incentive to broadcast to this minority community. Id. Because the Commission eliminated long-form license renewal requirements which could provide important information as to the short- and long-term effects of deregulation, no data has ever been provided to support the Commission's above assertion. Under earlier Commission regulations, each station was "expected" to serve minority groups. Public Service Responsibility of Broadcast Licensees, supra. The above history of FCC actions reflects that this was not always the case. Yet under radio deregulation, the Commission has further eroded the power of the broadcast media to serve minority interests. In their Report and Order, the Commission ruled that if only one station in a market is "serving" minorities, no other station in the market need be required to do so. Deregulation of Radio, supra, at 991. In addition, the implementation of radio deregulation eliminated important broadcast rules which previously insured that media outlets addressed the needs of minority communities. These rule changes are briefly examined in the sections below. a. ELIMINATION OF REQUIREMENTS REGARDING FORMAL ASCERTAINMENT OF COMMUNITY NEEDS In their order implementing broadcast deregulation, the Commission repealed regulations requiring the formal ascertainment of community problems and needs, along with the expectation that radio stations would contact minority groups within the community. See, First Report and Order, 84 F.C.C. 2d 968, 49 R.R. 2d 1 (1981); Second Report and Order, 96 F.C.C. 2d 930, 55 R.R. 2d 1401 (1984). The Commission attempted to justify this decision by focusing on the growing number of radio stations in the United States. The Commission argued "[i]t is not necessary that each station attempt to provide service to all segments of the community." First Report and Order, 84 FCC 2d 968, 997 (1981). Using a cost/benefit analysis, the Commission ruled that these logs would not necessarily provide any information relative to the specific content of programming, Report and Order, Deregulation of Radio, 84 FCC 2d 1008-09, and stated that more relevant information could be provided through compiling simple "issues/programs" lists that would provide illustrative information on 5 to 10 issues covered by the station during any broadcast year. United Church of Christ [III], 707 F.2d at 1439. However, this cost/benefit analysis has been criticized as focusing more heavily on industry costs than regulatory benefits. See, Hagelin and Wimmer, Broadcast Deregulation and the Administrative Responsibility to Monitor Policy Change: An Empirical Study of the Elimination of Logging Requirements, 38 (No. 2) Federal Communications Law Journal 201 (date?).... b. ELIMINATION OF LONG-FORM LICENSE RENEWAL The elimination of logging requirements must also be seen in light of the Commission's other deregulatory actions. One such action, the elimination of long-form license renewal, further reduced the amount of information available to the public and the Commission as to whether broadcasters adequately serve minority communities. Both the elimination of community ascertainment requirements and long form licensing renewal show that the Commission does not want to be bothered with information which may help ascertain the actual impact of deregulation on minority broadcasters and the listening and viewing public. c. ELIMINATION OF THE FAIRNESS DOCTRINE In addition to past discriminatory policies, the Commission's efforts at deregulating the broadcast industry have set into play broad forces which contradict the important policy goals of broadcast diversity mandated by Congress and the Supreme Court. See, Metro Broadcasting, supra, at ___. The Commission's decision to eliminate the fairness doctrine was one action which significantly reduced the diversity of programming content within the electronic media. The fairness doctrine required stations to broadcast information about controversial issues of public importance and to cover significant views concerning those issues. The Commission sought to eliminate the fairness doctrine during the earliest stages of deregulation, but Congressional pressure kept this doctrine in place for several more years. Nevertheless, citing the increased number of existing broadcast stations, the Commission argued that "the growth in both radio and television broadcasting provides reasonable assurance that a sufficient diversity of opinion in controversial issues of public importance will be provided in each broadcast market." Fairness Doctrine, 102 FCC 2d 143, 208 (1985), subsequent history omitted. [Find statistics, arguments, etc. re: impact of repeal of fairness doctrine on broadcasting diversity]. In light of the elimination of the Fairness Doctrine, micro radio is essential if the airwaves are to provide much needed media diversity at the local level. The Commission itself has acknowledged that diversity of perspectives is most important at the local level. In re Revision of Radio Rules and Policies, supra, paragraph 20. Because repeal of the Fairness Doctrine has further narrowed the number of viewpoints available over the broadcast media, micro radio remains one of the few vehicles by which voices outside the narrow mainstream of media "consensus" can make themselves heard. 2. INCREASE IN CORPORATE OWNERSHIP LIMITS OF AM AND FM COMMERCIAL RADIO Most recently, the Commission has sought to further deregulate the broadcast industry, with potentially disastrous consequences for minority broadcasters and the listening audience. In their Report and Order entitled In re Revision of Radio Rules and Policies, 7 FCC Rcd 2755 (1992), the Commission seeks to increase the number of radio stations one corporate entity can own. However, such an increase would lead to further concentration of ownership in the broadcast industry, significantly reducing opportunities for increased minority ownership of broadcast facilities. When the Commission previously increased ownership limits in the early 1980s, numerous mergers resulted: NBC was purchased by General Electric, Capital Cities bought ABC and several other owners merged into larger groups. Because the change in rules drove up station prices as competition for these stations became more intense, minority station owners were further precluded from bidding for these radio outlets. As major AM and FM radio stations consolidate their resources to dominate local markets, minority broadcasters are prevented from effectively competing for audiences, and are driven from the market. The League of United Latin American Citizens has recently noted the effects this rule will have on concentration of ownership. LULAC observed that: In 1984, 4,733 AM stations and 4,649 FM stations were on the air. Broadcasting and Cable Marketplace, 1992, p. E-15. In 1991, these numbers were 4,984 and 5,810, respectively. Id. Thus, the number of all radio stations grew between 1984 and the present from 9,382 to 10,794, an increase of precisely 15%. The Commission's action [raising ownership limits] will increase concentration from a total of 24 stations a single owner can hold to a total of 60. That represents a concentration increase of precisely 150%. The increase in concentration, in sum, will be fully 1,000% of, or ten times as great as, the growth in the number of radio stations in the same time period. Petition for Reconsideration of the League of United Latin American Cities (LULAC), 11, MM Docket No. 91-140, May 29, 1992. Additionally, while the gross number of radio stations has increased since 1950, the increased ownership limits currently promulgated by the Commission will permit concentration of radio ownership to return to a level equal to or exceeding that which existed in 1950. LULAC has argued: There is no sound justification for returning to the level of diversity that existed in 1950. Since that year, the number of radio households in the United States has more than doubled, increasing from 42.1 million to 94.4 million in 1991. Broadcast & Cable Marketplace, 1992, p. E-16. At the same time, the complexity of our dynamic society has grown enormously. These changes rationally require an increase in the number of perspectives. And that increased diversity must be achieved through broadcasting. Broadcasting is in fact even more important today as a medium of mass communication than it was in 1950. Although a few cable news services have appeared since then, that increase in news media is more than offset by the vast decline in the number of daily newspapers since 1950. Petition for Reconsideration of the League of United Latin American Cities (LULAC), 16-17, MM Docket No. 91-140, May 29, 1992. LULAC has observe with respect to the above that: The Commission has, in effect, mortgaged the same asset twice. On the one hand, growth in stations since 1950 justifies abolishing requirements that promote diversity of perspectives by single stations. On the other hand, the same growth justifies increasing concentration of ownership, and concomitant reduction of diversity, to the 1950 level. The final result is that the public is actually worse off than it was in 1950. Now it will have the 1950 level of ownership diversity. But it will not have the diversity it had in 1950 that was promoted by the radio's former public interest obligations. Id. at 19. 3. ELIMINATION OF THE MINORITY OWNERSHIP INCENTIVE RULE. The Commission in its recent Report and Order also seeks to eliminate the minority incentive rule for radio station ownership. Report and Order, supra, at ___. In his dissent, Commissioner Barrett argues that this Order dismisses the minority ownership incentive without sufficient consideration for the current state of minority ownership, the Commission's own precedents, and Congressional concerns. This action appears to contravene the Commission's previous claimed policy, and may in fact violate the law. See Multiple Ownership Rules, 100 FCC2d 75, 94 (1985). see also Metro Broadcasting, Inc. v. FCC, 110 S.Ct. 2997, 3010-11 (1990); TV 9, Inc. v. FCC, 495 F.2d 929, 938 (D.C. Cir. 1973), cert. denied, 419 U.S. 986 (1974). The elimination of this incentive rule also goes against the mandate of Congress. See Pub. L. 102-140, 105 Stat. 782, October 28, 1991 [FCC Appropriation Legislation]. Commissioner Barrett argues that the Commission's decision to eliminate the minority ownership incentive is "contrary to the FCC's public interest goals." In Re Revision of Radio Rules and Policies, supra, at 2813 (Statement of Commissioner Andrew C. Barrett dissenting in part and concurring in part). However, viewed in light of the Commission's policies over the last 11 years, it appears that this decision is consistent with the Commission's undeclared war on poor and minority broadcasters. 4. ELIMINATION OF DUOPOLY RULE The most serious potential injury to minority broadcasters is the repeal of the duopoly rule, such that a single corporation may own as many as 3 AM stations and 3 FM stations in the largest radio markets. See In re Revision of Radio Rules and Policies, supra, 2816-18 (Barrett, dissenting in part). Again, this proposal encourages the increased consolidation of radio ownership, further squeezing those broadcasters owning the smallest stations. Because FCC policies prevented minority broadcasters from entering the radio industry at its earliest stages, most minority broadcasters today entered the business at a later date and consequently own many of these smaller stations. As a result, it is the minority broadcasters and their audience who are most negatively affected by the Commission's encouragement of further radio consolidation . "Clearly diversity will suffer within radio markets as large station groups grow and wipe out smaller players." In re Revision of Radio Rules and Policies, supra, 2818 (Statement of Commissioner Andrew C. Barrett dissenting in part). FCC policies promoting common ownership will ultimately squeeze minority stations and decrease programming diversity. Because minorities have been frozen out by the Commission's policies, removing the prohibition on micro radio broadcasts is one small but necessary step in rectifying this historic imbalance. D. CONCLUSION Others have previously argued that the Commission's interpretation of diversity in broadcasting does not constitute "cultural pluralism" but rather "business pluralism"; that is, the Commission believes that diversity of business enterprises with broadcast licenses constitutes an adequate expression of communications diversity. See, R. Bunce, Television in the Corporate Interest, 13-39 (1976). However, this concept of business pluralism is seriously flawed. True broadcast diversity cannot occur when social, cultural and political viewpoints diverging from the status quo of mainstream commercial broadcasting are excluded from the public airwaves. Because of the profit-oriented nature of commercial broadcasting and the corporate funded context within which most public broadcasting occurs, true broadcast diversity is unavailable under current FCC policies. Now more than ever, true diversity of opinion and expression is required over the public airwaves. The growing economic disparity between the White majority and the underclass of minority citizens in this country has added to the deteriorating social health of the country. One means of addressing this disparity is through the media, particularly the electronic broadcast media. However, today minorities are nowhere to be found in these media. Broadcast media are vital in reaching minorities, yet minority ownership of broadcast stations remains at 2.7%. See A Statistical Analysis of Minority-Owned Commercial Broadcast Stations Licensed int he United States, U.S. National Telecommunications & Information Administration, October, 1991. Nevertheless, the Commission maintains that a strong relationship exists between diversity of station ownership and the diversity of perspectives available on the air. See, e.g., Multiple Ownership, 63 FCC 2d 824, 829 (1977). Although there may be some truth to this (cite Fife article), the Commission's policies have nevertheless failed in establishing either diversity of ownership or diversity of perspectives. Given the state of race relations in the United States today, this is especially unfortunate. As the Kerner Report (1968) recognized, the mass media has failed to enhance interracial communications. This report noted that racism in the media was in part responsible for civil unrest in the 1960s. The media report and write from the standpoint of a white man's world. The ills of the ghetto, the difficulties of life there, the Negro's burning sense of grievance, are seldom conveyed. Slights and indignities are part of the Negro's daily life, and many of them come from what he calls the "white press" - a press that repeatedly if unconsciously reflects the biases, paternalism, the indifference of White America. This may be understandable, but it is not excusable in an institution that has the mission to inform the whole of our society. Kerner Report at 203. Today the situation is no better. Large segments of the American population have been left unrepresented by the media, as confirmed in the aftermath of the Los Angeles riots. Increasingly, issues regarding literacy and the ability to structurally analyze a variety of injustices must be addressed. Such an analysis requires a diverse flow of information from all segments of the media - not just those media owned by corporate America. In our current age of extreme media imbalance, where there is little hope this imbalance will be addressed soon, an important method of achieving some form of communications diversity is through the operation of micro radio broadcasts in those communities where an extreme informational imbalance exists. In their recent Report and Order (In re Revision of Radio Rules and Policies, supra) the Commission noted that diversity of perspectives is most important at the local level. The Commission reiterated that "for an individual member of the audience, the richness of ideas to which he is exposed turns on how many diverse views are within his local market." Report and Order, paragraph 20. Further, the Commission has previously held that [a] proper objective is the maximum diversity of ownership that technology permits in each area. We are of the view that 60 different licensees are more desirable than 50, and even that 51 are more desirable than 50. In a rapidly changing social climate, communication of ideas is vital. If a city has 60 frequencies available but they are licensed to only 50 different licensees, the number of sources for ideas is not maximized. It might be that the 51st licensee...would become the communication channel for a solution to a severe social crisis. No one can say that the present licensees are broadcasting everything worthwhile that can be communicated. Multiple Ownership of Broadcast Stations, 22 FCC2d 306, 311 (1970). Nevertheless, despite the lip service that the Commission currently pays to ownership and broadcast "diversity," it is clear that the Commission has failed in promulgating regulations which promote free and vigorous debate over the airwaves. Those who are now excluded are those who have always been excluded in America - this country's racial and ethnic minorities along with the poor. Empirical evidence demonstrates that a market failure in minority-oriented programming has occurred. See: Wimmer, The Future of Minority Advocacy Before the FCC: Using Marketplace Rhetoric to Urge Policy Change, 41 Fed. Com. LJ, 133 (1989) [Citing numerous studies detailing how minority interests have ill-served in the wake of broadcast deregulation]. Significantly, FCC prohibition of micro radio broadcasts occurs within the context of the Commission's continued elimination of safeguards designed to protect minority broadcasters. As Commissioner Barrett recently observed, every time the Commission relaxes its ownership rules it points to a "safeguard" which it later abandons. In re Revision of Radio Rules and Policies, supra, 2818-19, N. 21 (Statement of Commissioner Andrew C. Barrett dissenting in part and concurring in part). Each time the Commission weakened national ownership rules, regional concentration rules, duopoly rules and one-to market rules, the Commission pointed to the existence of another as a safeguard. Id. However, it now appears that all of these rules are essentially gone and there are no more safeguards. Id. And yet, although the Supreme Court in FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) approved the Commission's decision to allow market forces to promote diversity in entertainment formats, the Court warned "the Commission should be alert to the consequences of its policies and should stand ready to alter its rule if necessary to serve the public interest more fully." Id. at 603. The Court reiterated its language from NBC v. United States that "If time and changing circumstances reveal that the "public interest" is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations." Id. at 225. Although empirical research has found that economic competition works in a manner inconsistent with racial equality (Wimmer and Wright, 1985 - LOCATE) the Commission nevertheless argues that broadcast deregulation is in the best interests of minority broadcasters and minority audiences. However, after many years of pursuing its policy of minority ownership, the number of minority owned broadcast outlets remains outrageously disproportionate to this country's minority population. While African-Americans comprise approximately 12% of the U.S. population, as of 1990 they owned only about 1.5% of the nation's 1,100 television stations and 1.7% of the 10,600 radio stations. Viewpoint: Fix Broadcasting's Imbalance, Electronic Media, 14, Jul. 16 1990, col. (?). The Commission has done away with requirements such as logging and long-form license renewal which would otherwise reveal whether or not deregulation has failed. Furthermore, the FCC acknowledges it has conducted no studies of the mass media marketplace at all. See: Request for Information Concerning Broadcast Deregulation 11-15, attached to Letter from Alex D. Felker, Chief, Mass Media Bureau, FCC, to the Hon. William H. Gray III, Chairman, Committee on the Budget, U.S. House of Representatives (May 24, 1988). In fact, the Commission has made no good faith inquiry into the negative effects of deregulation, particularly with regard to minority interests. As it now stands, minority broadcasters do not have the capital necessary to compete in the high-priced world of electronic telecommunications. Ultimately, minority broadcasting in the United States is intrinsically tied to previous trends in mass communications history. This history reveals that [t]he early development of heavily capitalized monopolistic and oligopolisitic control in twentieth-century mass communication eliminated undercapitalized minorities who tried to develop ownership of dominant mass media institutions. Any exceptions to this pattern...occur because "White corporations allow these Black companies to exist for symbolic value alone," as part of the mythology that black Americans can also have power in the Capitalist system. Fife, Racial Diversity in U.S. Broadcasting, 9 Media, Culture and Society 496 (citing Fife, "FCC Policy on Minority Ownership in Broadcasting: A Political Systems Analysis of Regulatory Policymaking", Doctoral dissertation, Stanford University (1984) AND M. Marable, How Capitalism Underdeveloped Black America, 158 (1983)). Those FCC policies that have been formulated in response to black media activists do not challenge the essential business pluralism that characterizes the US broadcasting industry and represent symbolic acknowledgements by the FCC and the broadcasting industry of black concerns about racial and cultural diversity. At the same time, these policies are consistent with mainstream majority cultural understanding about race and minority status in US society. This understanding is fundamentally one of a monocultural society that sees Afro- American values and expressions as strictly subcultural, and not appropriate for dissemination though dominant mass communications institutions. Id. (?) These policies have subsequently led to decreased diversity of programming in our print and electronic media which fail to reach out towards the melting pot (or perhaps more accurately, boiling pot) which comprises contemporary American society. As Commissioner Barrett has stated, Americans do not live in a color blind society, and it is presumptuous to think that the unregulated marketplace will operate as if society were color blind. Barrett Cites Minority Gains in Ownesrhip, Broadcasting, 53, Apr. 30, 1990, col. (?). Given the above, micro radio appears perfectly suited to addressing this imbalance by promoting broadcast diversity. Kantako's station is itself "part of a larger history of using low-powered media to reach ethnic audiences." See, Shields & Ogles, "Black Liberation Radio: A case study of the micro-radio movement," supra, at 14. Micro radio may thus be viewed as a supplemental media tool operating at the local level. Appendix 1 to the Commissions own Report and Recommendations in the Low Power Television Inquiry states: We may consider [very low power transmitters] as solutions to two problems. They serve to "extend" service to areas that presently have no service at all. They also serve to "expand" service by increasing the variety of services available in a community. Id., supra, at 24. Commissioner Andrew Barrett has stated that minority entrepreneurs should look to alternative media, rather than limited available opportunities in traditional broadcast in cable. Communications Daily, 6, Apr. 25, 1990, col. (?). Barrett has noted that the increased trend towards concentration (of ownership) in traditional media means there are fewer opportunities for newcomers, and that concentration has put increased pressure on the FCC's minority ownership policies. Id. Current regulations prohibiting the operation and utilization of micro radio should be eliminated in light of the Commission's mandate to serve the public interest (including the mandate to promote broadcast diversity), in light of the history of institutionalized racism perpetuated by the Commission, and in light of the Commission's recent acknowledgement that competition and diversity are relevant at the local level, In re Revision of Radio Rules and Polices, supra, at 11. Such prohibitions, where a need for these broadcasts undoubtedly exists, unconstitutionally interfere with the rights of minority broadcasters and their community to access their fundamental First Amendment rights. VIII. INTERNATIONAL LAW, AND IN PARTICULAR, THE U.N. DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, PROHIBIT THE COMMISSION'S INTERFERENCE WITH MBANNA KANTAKO'S MICRO RADIO BROADCASTS, WHICH VIOLATES THE RIGHT TO COMMUNICATE OF KANTAKO AND HIS COMMUNITY. Given the facts surrounding the operation of Black Liberation Radio, prohibiting Kantako's one watt radio station appears to violate his right to freedom of expression under international law. The Declaration of Human Rights and International Covenant on Civil and Political Rights establish the principle under International law that every person is entitled to participate in and develop the cultural life of his or her community. The long standing rule of construction first enunciated by Chief Justice Marshall is that "an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains...." The Charming Betsy, 6 U.S. (2 Cranch) 34, 67 (1804), quoted in Lauritzen v. Larsen, 345 U.S. 571, 578. Thus, in The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815) Chief Justice Marshall found that in the absence of congressional enactment, United States courts are "bound by the law of nations, which is part of the law of the land." Id. Similarly, in The Paquete Habana, 175 U.S. 677 (1900) the Court stated that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." Id. at 299. International law with regard to this right is set forth as follows: A. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: ARTICLE 19 The International Covenant on Civil and Political Rights was ratified by the United States Senate on April 2, 1992. This document was deposited at the United Nations by President Bush on June 8, 1992, and becomes effective on September 8, 1992. As of that date, this Human Rights document will have the force of law in the United States. Article 19 of the Covenant was based on Article 19 of the Universal Declaration of Human Rights. Article 19 states that 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: a. For respect of the rights or reputations of others; b. For the protection of national security or of public order, or of public health and morals. In the relatively few opinions that it has rendered on Article 19 interpretation, the Human Rights Committee has somewhat inconsistently applied its provisions. In one case involving the arrest of an individual for his political activities, the Committee determined that the, "bare information from the State party that he was charged with subversive association and an attempt to undermine the morale of the armed forces is not in itself sufficient, without details of the alleged charges and copies of the court proceedings....[to support a defense] that the arrest, detention and trial of Grille Motta was justified on any of the grounds mentioned in Article 19(3) of the Covenant." U.N. Human Rights Committee, Communication No. 11/1977, paragraph 17. This appears to indicate that Article 19 requires the government to establish, and substantiate if necessary, its justification for restricting the right to freedom of expression. However, in another opinion, the deference afforded a national government's restriction is self-evident. In that case, the Committee decided that the Finnish Broadcasting Corporation was well within its rights to disallow the broadcasting of a television program concerning homosexuality. The Committee stated that " a certain margin of discretion must be accorded to the responsible national authorities." The restriction was permitted based on the rationale that, "[a]s far as radio and TV programs are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded." These cases indicate that the scope of the "margin of discretion" accorded states under Article 19 is still uncertain. Therefore, analogy to the jurisprudence of other tribunals is required to determine if Kantako's right to freedom of expression has been violated. Significantly, Article 27 of the International Covenant on Civil and Political Rights also adds the following: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. (...Cite recent Human Rights Advocate intervention memorandum) B. AMERICAN CONVENTION ON HUMAN RIGHTS: ARTICLE 13 Besides Article 19 from the International Covenant on Civil and Political Rights, Article 13 of the American Convention on Human Rights states that, 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary in order to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or implements or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship, for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or any other similar illegal action against any person or group of persons on any grounds including those of race, colour, religion, language, or national origin shall be considered as offenses punishable by law. Article 13 of the American Convention on Human Rights, entered into force July 18, 1978, has been interpreted by the Inter-American Court as follows: A comparison of Article 13 with the relevant provisions of the European Convention (Article 10) and the Covenant (Article 19) indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas. See Advisory Opinion of 13 November 1985 on Compulsory Membership Of Journalists' Association, 8 EHRR 165, paragraph 50. Another difference between the European and American Conventions is the list of valid exceptions which allow a government to interfere with the right to freedom of expression. The Inter-American convention lists only two: "those that are necessary to ensure: a. respect for the rights and reputation of others; or b. the protection of national security, public order, or public health and morals." Nevertheless, interpretation of the two Articles is relatively similar. Like the European Court's interpretation of the right to freedom of expression, the Inter-American Court has stated The just demands of democracy must consequently guide the interpretation of the Convention and, in particular, the interpretation of those provisions that bear a critical relationship to the preservation and functioning of democratic institutions. Advisory Opinion of 13 November 1985 on Compulsory Membership of Journalists' Association, 8 EHRR 165, paragraph 44. Although there are no cases directly on point, Article 13 can best be understood in the Court's application of its provisions as they relate to the factual setting presented in its Advisory Opinion on Compulsory Membership of Journalists' Association. Advisory Opinion of 13 November 1985, 8 EHRR 165. In that case, a foreign journalist was prohibited and indeed fined under a local criminal statute in Costa Rica for his professional activities. The government regulation required that journalists become members of a professional organization in order to perform certain activities associated with the media. Certain criteria were required to become a member of the organization including graduation form a state university with a particular type of degree. The Court found this to be a violation of Article 13 because it "denie[d] any person access to the full use of the news media as a means of expressing opinions or imparting information." Id. The Court made this final determination after several findings regarding the interpretation of Article 13. Among these is the conclusion that freedom of expression "includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible." Id., paragraph 31. Furthermore, the Inter-American Court requires that any governmental "restrictions imposed under Article 13(2) 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." Id., paragraph 46 (emphasis added); Note that the Inter-American Court likened certain language in the Sunday Times case of the European Court to this same principle. In the case involving compulsory membership of journalists, the Court determined that the ends which the government sought to achieve through its regulation, namely the encouragement of professional ethics and responsibility, and the maintenance of journalists independence in relation to their employer, simply did not fall within those authorized by the Convention. In determining whether there has been an interference with the right to freedom of expression, the Court has concluded that the broad scope of the language of the Convention does not necessitate that there be actual governmental intervention. An example of this principle was given by the Court: This might be the case...when due to the existence of monopolies or oligopolies in the ownership of communications media, there are established in practice means tending to impede the communication and circulation of ideas and opinions. Id., paragraph 56. In Kantako's case, the cost of complying with FCC regulations insures that the radio communications media is really not available to all citizens who wish to express their ideas, but only to those who can afford it. The justification for these regulations is outdated and unnecessary, and not the "least restrictive means" to reach the government's objective. Further, the regulations directly impede the dissemination of information and expression of ideas of an entire class of society--the poor. This issue must also be examined through the eyes of exposing racism, as the net effect of such wealth-based classification is to limit drastically the number of media outlets owned by non- whites. Such a wealth and race-based impact demonstrates that the U.S. government's implementation of the FCC regulations, lacking as they do the necessary rationale and narrowly tailored means, constitutes a violation of the right to freedom of expression as interpreted by the Inter-American Court. C. EUROPEAN CONVENTION ON HUMAN RIGHTS: ARTICLE 10 Article 10 of the European Convention on Human Rights states that: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The European Court of Human Rights stated in its Handyside judgment that freedom of expression constitutes one of the essential foundations of a democratic society. Handyside case, Judgment of 7 December, 1976, Series A No. 24, paragraph 49. Furthermore, it was noted that the application of Article 10 should extend to information which "offend[s], shock[s], or disturb[s]the State or any other sector of the population." Id. In essence, this case provides the basis from which all future cases involving freedom of expression must be interpreted. Freedom of expression remains at the very core of democratic societies. As is the case in U.S. Constitutional Law, political speech is provided with the greatest amount of protection under Article 10 of the Convention. The Sunday Times v. The United Kingdom, Judgment of 26 April 1979, Series A No. 30, paragraph 65. This principle was enunciated in the case of The Sunday Times v. The United Kingdom in which the Court stated that it is essential for the mass media to impart information and ideas concerning matters...of public interest. Not only do the media have the task of imparting such information and ideas: the public also has the right to receive them. Id. The Court continued by stating that its supervision was not to be limited "to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith." Id., paragraph 59 The Court held that it is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions that must be narrowly interpreted. Id., paragraph 65. The Sunday Times case declared that the House of Lords was in violation of Article 10 of the Convention when it attempted to restrain the newspaper from reporting a story regarding the drug, "thalidomide". The Sunday Times wished to publish articles which detailed the history of the drug, its testing, its marketing and its manufacture. The interest in the story developed because the drug was found to have caused severe birth defects in the children of mothers who had taken the drug during their pregnancies. At the time of publication, litigation was pending against the distributors and manufacturers of the drug. A violation of Article 10 was found to exist because the Court felt that the matter was of "public interest". Although The Sunday Times case involves the print media, certain parallels can be drawn to Black Liberation Radio. As has been previously stated, Black Liberation Radio (then WTRA) was initially formed to fill the void which Kantako felt existed in local media broadcast as it related to the reporting of matters of "public interest" to his community. Any regulation of his activities which might fall within one of the enumerated exceptions should be narrowly construed in light of the protection afforded the right to freedom of expression by international law, especially because the speech at issue was "political speech," e.g., the broadcast which motivated the F.C.C. action criticized police behavior. International case law which applies directly to radio broadcasting is very limited. Therefore, it is necessary to analyze the principles of the other cases in light of this consideration. In the Autronic AG case, Judgment of 22 May 1990, Series A No. 178, involving the retransmission of television signals from a Soviet satellite, the Court maintained that the application of Article 10 could not be confined to the content of information. It stated that the protection of Article 10 must necessarily extend to the means of transmission or reception because "any interference with the means necessarily interferes with the right to receive and impart information." Id. at paragraph 47. In this particular case, the Swiss government was found to be in violation of Article 10 in its attempt to regulate retransmission. Autronic AG clearly demonstrates the notion that the "margin of appreciation" extended to a State's decision- making entities must be considered on a case by case basis. Here, The Swiss Government's characterization of the retransmission as a telecommunication as opposed to a broadcast was deemed an ineffective and unacceptable as a means for prohibiting the project. The Court stated that: Where, as in the instant case, there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the rights in question; the importance of these rights has been stressed by the Court many times. The necessity for restricting them must be convincingly established. Id., paragraph 61. Thus, absolute deference is not accorded to the Contracting States. The Court did overrule the Commission's finding of an Article 10 violation in Radio Groppera v. Switzerland, Judgment of 28 March 1990, Series A No. 173. However, the facts in Radio Groppera may be distinguished from those surrounding the operation of Black Liberation Radio. The case of Radio Groppera involved the cable retransmission of radio signals from an unlicensed station in Italy. The programming content consisted predominantly of popular music. The Court arrived at its decision by balancing the interest of protecting the international communication order against the rights of the Italian broadcaster. Ultimately, it was decided that the Swiss government had not overstepped the "margin of appreciation". The Court characterized the Italian applicant as a Swiss station operating from outside the borders. This was done, according to the Court, in an effort to bypass the statutory requirements regulating Swiss radio stations. In arriving at this determination, the Court did make an important declaration about the interpretation of Article 10 as a whole and the third sentence of paragraph one of Article 10 in particular. The Court stated that the intended purpose of the third sentence was to make it clear that States are permitted to control by a licensing system the way in which broadcasting is organized in their territories, particularly in its technical aspects. It does not, however, provide that licensing measures shall not otherwise be subject to the requirements of paragraph 2, for that would lead to a result contrary to the object and purpose of Article 10 taken as a whole. Id., paragraph 62. This statement solidifies the principle that the "margin of appreciation" afforded the Contracting States is not absolute. It would seem that a state must have a valid reason for restricting the right to freedom of expression; one that is "necessary in a democratic society" in light of the conditions set forth in paragraph 2. This interpretation of Article 10(2) is extremely relevant to the operation of Black Liberation Radio. In light of this interpretation, the validity of prohibiting radio stations with less than 100 watts must be seriously questioned. This is particularly true when considering the significant technological advancements made in satellite and cable in recent years. Many of the F.C.C. regulations were instituted due to the finite number of frequencies which once existed. Here, the governments interest in Mbanna Kantako's activities appears more closely linked to the content of his broadcasts and the remarks made regarding police brutality than to any legitimate interest set forth in Article 10. In sum, a Contracting State must satisfy the following test in order to justify their interference with the right to freedom of expression: - it is "prescribed by law"; - it is in pursuance of one of the legitimate aims listed in Article 10(2); - it is "necessary in a democratic society", having regard to the "duties and responsibilities". Anthony Lester, Freedom of Expression, p 38-39 (unpublished article), (date unknown) The first element of the test is rather self-evident while the second requires some interpretation. The second paragraph of Article 10 sets forth a laundry list of justifications which a Contracting State may claim in order to validly interfere with the right to freedom of expression. In the Sunday Times case, the court noted that these phrases (ie..in the interest of national security, territorial integrity etc..) should be interpreted in light of the entire Convention and not simply as a matter of domestic law. The Sunday Times v. The United Kingdom, Judgment of 26 April 1979, Series A No. 30, paragraph 65. Therefore, the reason for the interference must be based on some legitimate rationale enumerated in the Article. Id., 57. The interference may not be based on some arbitrary governmental reasoning. This element of the test is important to the analysis regarding Black Liberation Radio. Kantako had been operating his radio station for close to two years when the government shut him down. If the action taken against him had genuinely been aimed at one of the factors listed in Article 10(2), it is more likely than not that government officials would have taken action much sooner. It is simply too much of a coincidence that the radio station was shut down following Kantako's statements on the air concerning police brutality in his neighborhood. [NOTE: One case that does seem to go against Black Liberation Radio is that of X v. The United Kingdom, 16 D & R 190 (1978). In this case, the Court stated that the valid rationale for an interference with the right to freedom of expression (listed in Article 10(2) as the "prevention of disorder and crime") includes those who advertise or otherwise promote pirate radio stations. Id. But here, it would be unfair to characterize Black Liberation Radio as a pirate radio station in that the government has no legitimate justification for curtailing his right to freedom of expression.] The third element of the test, the so-called "necessity" test has received much attention from the Court. On several occasions, the Court has remarked that the word "necessary" should be interpreted to mean that the Contracting State must establish a "pressing social need" in order to account for the interference with the right guaranteed by Article 10. Handyside case, Judgment of 7 December 1976, Series A No. 24, paragraph 48- 50; The Sunday Times v. The United Kingdom, Judgment of 26 April 1979, Series A No. 30, paragraph 62. As previously stated, another factor which must be balanced against the "necessity" is the public interest in the matter. The Sunday Times v. The United Kingdom, Judgement of 26 April 1979, Series A No. 30, paragraph 65-66. In the present case, it is difficult for us to determine what, if any, is the possible pressing social need for prohibiting the airing of a radio program from a one watt station. In fact, it is more likely that Kantako's radio station fulfills a pressing social need by providing a forum in which the concerns of his community can be adequately addressed. There is a public interest in being an informed citizen so that one can properly participate in community activities. As noted earlier, another factor to be considered is the scope of the "duties and responsibilities" associated with the expression. The nature and scope of these "duties and responsibilities" must be derived from the context of the given factual scenario. Handyside v. U.K., Judgment of 7 December 1976, Series A No. 24, paragraph 49. For example, in the case of Engel v. The Netherlands, the armed forces were involved. Engel v. The Netherlands, Judgment of 8 June 1976, Series A No. 22, paragraph 100. Therefore, the applicant had a much more difficult time overcoming the government's justification for the interference. Here, the government's justification for interference is more difficult to prove. Black Liberation Radio operated for close to two years without interruption, and without interfering with other broadcast signals. In addition, the station served the needs of the community, thereby advancing the public interest. Because the scope of these "duties and responsibilities" here differs significantly from that in Engel, government interference with Black Liberation Radio cannot be easily justified. D. CONCLUSION In general, the interpretation of the right to freedom of expression varies somewhat among the international tribunals and the Convention being interpreted. This right has been proclaimed by States over and over in international instruments, supporting the argument that the right is part of customary international law. When the claimants of this right are members of a demonstrably under-represented body such as African Americans, the avenue of investigating human rights violations based on race and wealth discrimination is opened. While there are some cases that can be used against those seeking to exercise their rights, these cases may be legally distinguished from the facts surrounding the operation of Black Liberation Radio and others of its kind. Again, a European state must have a valid reason for restricting the right to freedom of expression, one that is "necessary in a democratic society" in light of Article 10. The Contracting State must also satisfy the following test in order to justify their interference with the right to freedom of expression. The interference must be: prescribed by law; in pursuance of the legitimate aims listed in Article 10; necessary in a democratic society, having regard to the duties and responsibilities of such a society; interpreted in light of the entire Convention and not simply based on domestic law. The strength of Kantako's claim here rests on the fact that he broadcast for over two years before the government attempted to terminate his broadcasts and that the prohibition came after his discussion of police brutality in his community. As a result, the very real possibility exists for securing international resolutions condemning the United States for its practices and a call to amend the actions that limit the rights of peoples to speak and to listen. STANDING I. MICRO RADIO PRACTITIONERS AND MEMBERS OF THE COMMUNITIES UNSERVED BY THE PRESENT COMMERCIALLY BASED BROADCAST SYSTEM HAVE STANDING TO CHALLENGE FCC POLICIES. The right of public participation in regulating the broadcast spectrum can be found in NBC v. United States, 319 U.S. 190 (1943) when the Court held that "the 'public interest' to be served under the Communications Act is thus the interest of the listening public in the 'larger and more effective use of radio.'" Id. at 216. Later, the Supreme Court stated that: [i]t is the right of the viewers and listeners, not the right of the broadcasters which is paramount.... It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here. That right may not be constitutionally abridged either by Congress or by the FCC. Columbia Broadcasting System v. Democratic Nat'l Committee, 412 U.S. 94, 102 (1973). Additionally, the Court reiterated in Red Lion that it "[i]t is the right of the viewers and listeners, not the right of broadcasters, which is paramount." Red Lion, supra, at 390. The Court also found that "[a]s far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused." Id. at 389. The Commission itself has also repeatedly asserted that "[citizens] are the owners of the channels of television - indeed, of all broadcasting." Television Network Program Procurement, H.R. Rep. No. 281, 88th Cong., 1st Sess. 20 (1963), (cited in United Church of Christ [I], 359 F.2d at 1003.... CONCLUSION [Cite how micro radio allows for locally operated stations which provide low-cost programming that is community oriented....] As Lawrence Tribe has noted: The twentieth century technological revolution has fundamentally altered the map of our trifurcated communications system. The printing press has been replaced by the picture tube. The influence of the nation's 1,730 daily newspapers is dwarfed by that of nearly 10,000 commercial and educational radio stations, not to mention the gargantuan television networks with their myriad affiliates. The typical family is tuned into its TV for more than a third of its waking hours, and television has become the primary source of news for a majority of the population. By 1977, broadcasting had grown to the point where the average American consumed four times as many words through the airwaves as through newsprint, and the disparity is increasing. L. Tribe, (cite hornbook), 1007 (1989). Professor Tribe continues that: The trouble lies in the fact that, although these powerful new media have acquired the functions of the press, they have not yet obtained the rights of the press. The rate of technological change has outstripped the ability of the law, lurching from one precedent to another, to address new realities. Novel communications are pressed into service while still in their infancy, and the legal system's initial encounters with these newborns have a lasting influence. As one astute observer has explained, "[t]echnical laymen, such as judges, perceive the new technology in that early, clumsy form, which then becomes their image of its nature, possibilities, and use. This perception is an incubus on later understanding." Id., citing Kaufman, "Reassessing the Fairness Doctrine," N.Y. Times Magazine, 17, 7 (June 19, 1992). APPENDIX 1 Defendant in Weiner first began operating unlicensed radio stations at the age of 17, when he and a friend began operating the "Falling Star Network" out of Yonkers, New York on both the FM and AM bands. In re Weiner Broadcasting Co., 6 F.C.C. 4337, 4338 (July 9, 1991). Before going on the air, defendant and his friend visited the FCC's field office in New York City and asked if there was any way they could obtain a license. They were told that they could not obtain a license because of the legal and other costs involved. In light of the high cost of acquiring a broadcast station Weiner felt that the only way he could become a broadcaster was to broadcast illegally. Id. (citations omitted). Defendant and his friend later went on the air but, after a warning letter and visit from FCC officials, ceased broadcasting. Id. The two would-be broadcasters then travelled to Washington, D.C., and met with then FCC Commissioner Nicholas Johnson to determine whether there was any way they could operate a small Yonkers community radio station without running afoul of the Commission's rules. They were told by Johnson that there were no frequencies available and that purchasing a station in New York would be difficult. Id. Defendant thereafter resumed illegal operation, beginning what would become two decades of sometimes pirate, sometimes licensed broadcasting. Id. at 4338-43. Addressing the Commission in 1971, defendant wrote: We started the whole thing because we love Radio as an artistic and creative medium, and to bring freedom to the airwaves, not because we want fat bank accounts and chauffeur-driver cars. We have chosen our operating frequencies especially so as not to cause interference with any other stations. However, as human beings, as citizens of the United States, and the World, we have a right to use the airwaves put there by who or whatever created the universe, and use them we will. This is our freedom, this is our right. Id. at 4338. Finally, in 1988 the FCC took defendant to federal court in an effort to stop his air piracy. United States v. Weiner, 701 F.Supp. 14 (D.Mass. 1988), aff'd, 887 F.2d 259 (1989). Defendant had purchased a seagoing ship, the "Sarah," and outfitted her with transmitters. Under the name "Radio New York International," defendant began broadcasting music and commentary on the AM band from just beyond the territorial limit off the coast of Long Island. Id. The United States sought and received a temporary restraining order, asserting violations of both federal law and international radio treaties. Id. at 14, 15. On motion for a permanent injunction, the government asserted that 'numerous' AM, FM and shortwave radio stations would be subject to interference from future Radio New York International broadcasts. [Further,] members of the listening public who rely on certain licensed programming for information and entertainment may have such programming disrupted. Id. at 15. In response, defendant argued that he possessed a 'constitutional right to freedom of expression over the public forum of the airwaves...(and)...access to unused and open broadcast frequencies for the purpose of disseminating (his) views to the public' so long as [he] met 'all reasonable and narrowly drawn government requirements related to technical and procedural matters such as noninterference and maximum power.' Id. (quoting Defendant's Memorandum of Law). The court, ruling alternatively on each of the government's separate legal theories, permanently enjoined Weiner from further broadcasts. Id. at 17. First, the court noted that the International Telecommunication Convention, codified in the United States at C.F.R. § 2.100 (1987), prohibits broadcasting stations on ships outside of national waters, and that an injunction could be issued on this ground alone. Id. at 15. Turning to the Communications Act, the court noted that spectrum scarcity and interference are "important" reasons which necessitate regulation of the airwaves. Id. at 16. In that case, the court rejected defendant's argument that the broadcast spectrum "is a natural phenomenon, like oceans and meadows and mountains and lakes," thereby analogous to "streets, parks, and public places...subject [only] to reasonable restrictions on time, place and manner." Id. The court responded that: Defendants ignore the fact that even if the band were 'empty', they could not look to the First Amendment for authority to broadcast on an unoccupied frequency in violation of both federal and international law. Id., citing FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 798-802 (1978); Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 101 (1973)). Here, the court also noted that "[T]he right of free speech does not include the right to broadcast without a license. The regulation of the radio band in question does not infringe upon the constitutional rights of the defendants." Id. at 17. Significantly, the court emphasized international law in upholding its right to prohibit Weiner's broadcasts. In light of the Commission's emphasis on International law, the court should also focus on International law with regard to Mbanna Kantako's right to communicate with his community. Specifically, the court must follow International law pursuant to Article 19 of the International Covenant on Civil and Political Rights, Article 13 of the American Convention on Human Rights, and Article 10 of the European Convention on Human Rights. See: infra at .... Statistics indicate that the literacy rate among African American residents of Springfield is ___ % (citing statistics compiled in previous Springfield voting rights lawsuit). Additionally, the unemployment rate among African Americans living within the area of Springfield encompassed by the John Hay Homes is currently estimated at ___%. Currently, Kantako's main expenses are only for telephone interviews (approximately $200/month), tapes, postage, and occasionally having to replace a piece of equipment. See: Compilation by State of Minority Owned Commercial Broadcast Stations, The Minority Telecommunications Development Program, National Telecommunications & Information Administration, October, 1991. Philosophically, Kantako's operation of Black Liberation Radio rests on six tenets: 1. Blacks (and other minorities) are underrepresented in the ownership and operation of radio stations in the U.S. by 600%. 2. FCC regulations and licensing requirements are blatantly discriminatory against minorities and low income people. 3. It takes a minimum of $50,000 to start the smallest licensed FM station (100 watts). This means that not only are most minorities excluded from the airwaves, but so is 90% of the entire population, regardless of color. 4. The establishment media does not represent the interests and concerns of this excluded population. 5. Exclusion from the media is a form of social control that is undemocratic and a violation of the 1st and 14th Amendments. 6. Micro Radio is a way of beginning to empower low-income citizens; its the voice of the excluded. S. Shields and R. Ogles, supra, at 9-10 (citing Townsend, "Mbanna Kantako and the Micro Radio Movement," 3, undated). These philosophical tenets guide Mbanna Kantako's fight to enjoin the Federal Communications Commission from prohibiting low power micro radio broadcasts where these unlicensed broadcasts on serve a compelling public interest. Following the aftermath of the Rodney King verdict in Los Angeles, approximately 70 people came into the station, with another 30 calling in. . The station prominently features political and educational commentary on a variety of topics, including government policy with respect to apartheid, the AIDS crisis, and genocide against the African American race. In addition to lectures on tape, readings, interviews with writers and "conscious" music. Black Liberation Radio also offers programming by and for children and teenagers in the community, and Kantako refuses to play music with lyrical content inappropriate to children. It is interesting to note that crime in general has dropped in the John Hay Homes since Black Liberation Radio began broadcasting. Prior to going on the air, the neighborhood encompassed by the John Hay Homes averaged four to five murders a year. However there have been few shootings since Black Liberation Radio went on the air. When Black Liberation Radio started up, it was the neighborhood kids who first started coming around to help Kantako with the broadcasts and to put on their own shows. This reflects Kantako's goal of reeducating the youth in the community. To this end, books and lectures are read and rebroadcast along with music, cultural values and technical skills. Although creating space for a many high power "professional" educational stations was the Commission's stated goal, supporters of this proposal had other reasons for supporting this rule change. As one commentator noted: Some petitions saw the problem of low-power stations as extending beyond a mere failure to provide [high power] educational programming. The Monte Rio Chamber of Commerce alerted the Commission to the fact that Class D stations "[being cheap to construct and not subject to the same monitoring or scrutiny that applies to commercial stations] lend themselves to be used as propaganda and agitation tools by radical groups." Educational FM Radio, supra, at 432 n. 9, (citing Petition of Monte Rio Chamber of Commerce, Monte Rio, California, Docket 20735, filed July 19, 1980). Although the Commission believed that the effect of one 10-watt station on the spectrum was minimal, they argued in their Second Report and Order that the cumulative impact of many 10 watt stations restricted the establishment of a network of "professional" high power stations providing new or extended educational radio services (i.e., stations typically funded by the Corporation for Public Broadcasting). [Cite...] The Commission concluded that the public interest required moving these low-power Class D stations to other channels "where they would not impede the development of new or extended educational radio services." Second Report and Order, supra, at ... The Commission therefore imposed a freeze on the acceptance of additional 10-watt applications in 1978. First Report and Order, 68 F.C.C. 2d 988, 43 R.R. 2d 197 (1978). Next, the Commission sought to remove all Class D stations from the educational spectrum (87.9 to 91.9 megahertz, 47 C.F.R. § 73.501(b) (1989)). Second Report and Order, supra, at 266 (codified at 47 C.F.R. at § 73.506 and 47 C.F.R. at § 73.512). Finally, starting with all renewal applications filed January 1, 1980, all 10-watt stations were required to begin addressing how they would comply with the amended rules. Second Report and Order, supra, at 250. Class D stations that chose not to leave the air had four alternatives under the Second Report and Order. These stations could discontinue operations as a Class D station, become a 10 watt commercial outlet, operate at the newly created Channel 200 (87.0 MHz) or operate on a noncommercial educational FM channel. Second Report and Order, supra, at ___. As a result of this Commission action, most Class D stations chose to acquire new equipment and become Class A station operating at a minimum 100 watts rather than fend for themselves under the other options. These latter options were either unfeasible or offered no protection from signal interference caused either from new stations which were granted, or from the modification of existing ones, 47 C.F.R. § 73.209 (1989). See: Educational FM Broadcasting, supra, at ___. Footnote defining "dbu contour" Compare Katzenbach v. Morgan, 384 U.S. 641 (1966), where the right to vote of Puerto Rican residents of New York City was recognized as a means to ensure equality of access in all areas of public life including police, sanitation, education and municipal services generally. In 198__, General Electric purchased RCA for a sum of $_____________________.00 This was a classic red herring: twenty-two years earlier, the Supreme Court had ruled that restrictive covenants were unenforceable. Hurd v. Hodge, 334 U.S. 24 (1948). Not until 1976, in a case involving Johnson Publishing Company's WJPC-AM did the Commission reverse itself. Atlass Communications, Inc., 61 FCC2d 995 (1976) (Chicago, Illinois). Define "distress sale." In 1950, 2,234 AM stations, and a small number of FM stations, were on the air. Broadcast & Cable Marketplace, 1992, p. E-15. Under the Commission's original duopoly rules, these numbers representing something close to a minimum of 2,234 unduplicated voices in the nation's radio market. Today, there are over 5,810 FM stations on the air, and a slightly smaller number of AM stations. Id. Under the previous duopoly rules, these numbers represent something close to a minimum of 5,810 unduplicated voices in radio markets. The number of unduplicated voices has only slightly more than doubled since 1950. The Commission's new duopoly rule, in comparison, will permit ownership concentration in any markets to triple. In a greater number of markets, concentration can at least double. Petition for Reconsideration of the League of United Latin American Citizens, 15-16, MM Docket No. 91-140 (May 29, 1992). The Commission's "duopoly rule" refers to... The Commission itself has noted that "[i]ndustry revenue and profit are overwhelmingly concentrated in large radio stations.... [T]he top 50 revenue producing stations, .5 of all stations, accounted for more than 11 percent of total radio revenue in 1990 and an estimated 50 percent of total industry profit. Report and Order, supra, paragraph 9. International Covenant on Civil and Political Rights, entered into force March 23, 1976. As with the Inter-American Court of Human rights discussed below, the number of decisions rendered by the Human Rights Committee pertaining to Article 19 is so far very limited. Most of those opinions relate to the persecution of individuals for their political view points. For now, this makes the interpretation of Article 19 somewhat difficult with respect to micro radio. One of the best means of interpretation may be a comparison with Article 13 of the Inter-American Convention. An examination of both Article 13 of the Inter-American Court of Human Rights and Article 19 of the International Covenant of Civil and Political Rights will demonstrate the close alignment of provisions regarding government "necessity". In its Advisory Opinion on Compulsory Membership of Journalists' Association, 8 EHRR 165, paragraph 45 (13 Nov. 1985), the Inter- American Court stated that Article 19 served as a model, at least in part, for Article 13 of the Inter-American Convention. See U.N. Human rights Committee Communication No. 61/1979. Id., paragraph 10.3. Id., paragraph 10.4. American Convention on Human Rights, entered into force July 18, 1978. American Convention on Human Rights, entered into force July 18, 1978. European Convention on Human Rights, Text amended according to the provisions of Protocol No.3 which entered into force on 21 September 1970, and of Protocol No. 5 which entered into force on 20 December 1971. The case involved the prosecution of a publisher of a book entitled "The Little Red Schoolbook", which suggested that the young people for whom the book was written should maintain a liberal sexual attitude. The Court deemed that there had been no violation of Article 10 because of the wide margin of appreciation to which the Contracting States are entitled. -1- brief.001