Judge grants pirate broadcasters anonymity in suit against FCC

Wednesday, February 3, 1999

Four disc jockeys with the former micropower radio station Steal This Radio in New York may sue the government without revealing their names, a federal judge ruled this week.

U.S. District Judge Michael Mukasey said the broadcasters, known by such on-air monikers as DJ Thomas Paine and DJ Carlos Rising, risked possible civil penalties and criminal prosecution for their unlicensed broadcasts.

“To deny them permission to proceed by pseudonym would either expose plaintiffs to further penalties and prosecution, or more likely than not, discourage them from pursuing their constitutional challenge,” Mukasey wrote in his Feb. 1 ruling in Free Speech v. FCC.

Steal This Radio is an unlicensed radio station in New York City operating at 20 watts of power at 88.7 FM. The station operators, who began broadcasting in November 1995, claim the station reaches more than 100,000 listeners along the Lower East Side of Manhattan.

The Steal This Radio broadcasters sued the Federal Communications Commission in May 1998, two months after an FCC agent threatened to seize their equipment if they didn’t halt the broadcasts. Last September, the station won a preliminary injunction to stay on the air until the case is settled.

The FCC forbids operation of most unlicensed stations but doesn’t offer licenses to stations broadcasting with less than 100 watts of power. On Jan. 25, the FCC voted to consider offering low-power licenses, but until the agency approves a new plan, such stations operate illegally.

In June 1998, U.S. District Judge Claudia Wilken in FCC v. Dunifer allowed the FCC to shut down Free Radio Berkeley for operating without a license. Wilken, who had allowed the station to continue operating while she considered the case, ruled that Dunifer’s free-speech claims were irrelevant because he never applied for a license.

The Steal This Radio broadcasters, too, have never applied for a license. But they claim the present FCC licensing requirements violate the First Amendment because they unfairly restrict speech.

Calls to station attorneys were not returned. An FCC spokesman declined to comment.

The FCC and its supporters say such licensing measures are necessary to prevent signal interference and chaos on the airwaves. The agency argued that the broadcasters shouldn’t be allowed to maintain their anonymity in the lawsuit.

Mukasey disagreed, saying the threat of government retaliation is real. He also said the broadcasters’ anonymity would not obstruct the trial or unfairly reflect upon the government.

“The fact that the defendants are government entities rather than private defendants is significant because governmental bodies do not share the concerns about ‘reputation’ that private persons have when they are publicly charged with wrongdoing,” the judge wrote.