Federal appeals panel closes down unlicensed Prayze FM

Wednesday, June 14, 2000

A federal appeals court panel has granted a preliminary injunction to the Federal Communications Commission that prohibits an unlicensed commercial gospel radio station in Connecticut from further unlicensed broadcasting.

Prayze FM, which operates in Bloomfield, Conn., seeks to provide gospel music and Christian programming to the African-American community in the greater Hartford area. It began broadcasting without a license in November 1996.

The station operates as an unlicensed microbroadcaster. Until recently, FCC regulations prohibited stations operating at less than 100 watts (known as microbroadcasters) from obtaining a license.

The station sued the FCC in February 1998, claiming that the FCC’s licensing rules violated its First Amendment rights and functioned as an unconstitutional prior restraint on expression.

In March 1998, the FCC sued Prayze FM, seeking a judicial order stopping the station from further unlicensed broadcasting.

In November 1998, a federal district court granted the FCC’s request for a preliminary injunction. After more procedural wrangling, the district court entered another preliminary injunction in November 1999.

On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals unanimously affirmed the district court’s November 1998 preliminary injunction in Prayze FM v. Federal Communications Commission.

“Such unlicensed broadcasting threatens the FCC’s orderly allocation of scarce resources and the clear communication of current and future licensees,” the panel wrote in its June 5 opinion.

Prayze FM had argued that the licensing scheme of the FCC operated as a prior restraint in violation of the First Amendment because it gave FCC unfettered discretion to determine when to license a station.

The panel noted that “the Supreme Court has held that the authority given to the FCC to license broadcasters does not vest unfettered discretion in the agency.”

The panel wrote that the high court “has also repeatedly recognized that spectrum scarcity justifies a quantum of governmental regulation of speech in the broadcasting context that would not be constitutionally tolerable elsewhere.”

“The prohibition of microbroadcasting was designed to further the substantial government interest in allowing other broadcasters to operate free of interference,” the panel wrote.

The panel emphasized that its ruling was confined to the preliminary injunction stage of the litigation and that it had “no opinion whatsoever on the merits of an eventual as-applied challenge by Prayze.”

Calls to attorneys on both sides of the case were not returned.