[EAS] [BC] Compulsory carriage of EAS messages is unconstitutional

[John Willkie]

Mark;

I didn't give generalities.  Your "response" does.  Therefore, it fails on that count to start.

Perhaps unlike you, I have applied for an FCC broadcast construction permit, received a CP grant, built the station and then applied for and received a covering license.  I also spent the better part of a decade as a legal/engineering researcher (for others) at 1919 M Street N.W.  I seldom make mistakes on FCC rules, practice or procedure, but I don't claim expertise on the workings of EAS/EAN; my station was non-participating.

You see, the requirements of a broadcaster are EXPLICITLY listed on the grant of authorization (the license grant.)  Tower marking and lighting, for example, are there, and Canada/Mexico restrictions, and operating parameters, HAAT/AMSL, etc.  I can recall no requirement that the grantee engage in compelled speech when requested. Indeed, if you examine, you will find that broadcasters are not required to broadcast, per se.  They have to get FCC permission to not operate for 30 or more continuous days.

There is only one thing that an applicant waives in applying for a construction permit: you waive your (generalized) right to operate on that frequency.  The term "grant" should be a clue: it's just about 180 degrees from "a waiver of rights."  By the way, the waiver one's generalized right to use the frequency is SPECIFIED in the license grant; you are only allowed to operate on the frequency pursuant to the grant, it's explicit conditions, and FCC rules.  All you have to do is to actually read the license grant -- which is posted somewhere at every station.

If you have ANY evidence (license grant, FCC Administrative Law Judge decision, court of appeals, Supreme Court, FCC document) that explains how broadcasters can be required to engage in specific speech, then please, show it. 

I can guarantee you that there is no 4th amendment violation in verifying sales tax remittances.  Remember, in that case, the seller is the agent of the government, and the government has a right to know if it is receiving its due.  In any case, this aspect would have been litigated to conclusion decades ago.

The NAB has strongly resisted any requirement for compelled speech under FCC rules.  Note, for example, that "parental ratings" are not required to be transmitted.  I know from participation in a standards development organization (per the NAB representative) that the NAB opposed this technically and legally due to their long-standing opposition to "compelled speech."

As for ascertainment, you are off by about a decade as to when ascertainment started; it was added to major-market TV license transfers in the late 1960's and came into the rules in the early 1970's.  You might recall that at one point radio stations that had less than 3% of their airtime devoted to news would be given a slow track in renewals.  Then, the FCC realized that if they can't mandate news programming, they can't grade on it either.   You might want to also review the "Blue Book" and the "Network Broadcasting Inquiry" from the 1940's (copies are in the FCC library) to review what few tools the FCC had even then to mandate programming.

Ascertainment could be onerous during the 1970's -- before the Fowler FCC trimmed them in 1983 or so -- but the "responsive programming" needed to come from the licensee; not the gov.

Anyone who says that the Fairness Doctrine is constitutional simply isn't paying attention.  The FCC lost that in court, and tried to get Congress to fix it, but they were rebuffed: minority and majority staffs on the Senate and House sides all concluded that it would be futile, because the Fairness Doctrine was unconstitutional on its face, as the ambit of "compelled speech" had been enlarged by the courts.

Best;

John Willkie

>
> John,
>
> One thing to keep in mind is everything being discussed concerns
> operations under a FCC license. Such license is permitted by statute and
> is in many ways the same as a divers license. When you apply for the
> drivers license, the applicant agrees to abide by rules and regulations
> created for that service as a licensee. Such as insurance requirements,
> vehicle tagging, and obeying the rules of the road.
>
> The same is true of any business which pays sales taxes in a given
> jurisdiction. Business license applications includes a waiver for the AHJ
> collecting the sales tax to audit a given business's books to verify the
> taxes being paid are accurate and truthful. One could argue a 4th
> Amendment violation there...but nope. The business willfully and without
> duress agreed to the condition.
>
> When a broadcaster or cable operator applies for and receives their FCC
> license, they must do the same and waive certain "rights" which would be
> afforded them in a completely unregulated environment. Such is the trade
> off obtaining the privilege to operate the radio station. And one of those
> is Part 11.
>
> So...bottom line is....what you have referenced in your posts is not
> applicable in this context. While it is true the NAB opposes mandatory
> EAS forwarding of anything more than the EAN, NPT and RMT, they oppose it
> for reasons other than a 1st Amendment basis. Some of which I happen to
> agree.
>
> More over, the FCC did in fact impose editorial prescriptions and
> acertainment until the mid-80s when they voluntarily changed the rules in
> it's history making deregulation. And IMHO could re-enact them (along with
> the Fairness Doctrine) and pass a constitutional challenge. If you were
> in the business in the 70's, you would recall it was an onerous mandate
> every licensee dreaded going into license renewal.

John Willkie johnwillkie at hotmail.com johnwillkie at etherguidesystems.com
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