Fifty people filed through metal detectors at the Post Office today, filling the courtroom to witness the case of United States of America vs. Larry Bloch and rfb.
The judge began by asking some legal clarifications of the US's attorney, David Kirby. "Is this request pursuant to 401-A?" Yes. "Where is your authority for this injunction? The statute says writ."
Kirby said that a writ of mandamus is simply old language for an injunction, and said the Act of 1934 was old. Larry Hildes, lawyer for rfb, jumped in and stated that "our sense is that the FCC wants to get B under A. They want the best of both worlds and we think it should be A or B but not a hybrid." Kirby said that this is standard and there was a case to back it up.
Hildes also took issue with Kirby's language, specifically his calling rfb a "pirate" station. Jim Maxwell, lawyer for rfb said that he would like to call some witnesses, people from the FCC and the community. The judge said that he was not going to grant any consolidations today.
Kirby said that he can't contest that shows won't be heard, but nonetheless it is a case of irreparable harm. "We don't contest the factual assertions that community programs will be curtailed."
Maxwell said that rfb filed first for protection from the court. "rfb provides an irreplaceable service. We want to show that silence is irreparably harmful to the community."
The judge said "I'm interested in whether you can get a license at all. It's a crucial issue."
Hildes pointed out that no licenses for 10 watt stations are available. "Does public good outweigh regulation? The issue hasn't been addressed by courts. The US loses nothing by shutting it down. The town loses everything."
The judge asked if there was precedence for this. Maxwell commented that the people precede the FCC. "The FCC abuses its discretion and places us in this court. We come to this court for relief."
Kirby said that any argument saying the FCC fails to act is wrong. "It has acted, creating the LPFM Act, with 80 pages of provisions. Under that order there is a two tier system set up."
The judge asked if anyone could get a LPFM license.
Kirby said "There are two tiers. The first is 100 watt, and there is even an applicant for one here in Brattleboro that would want the 107.9 frequency. A license is pending."
By whom, asked the judge.
"Vermont Earthworks." says Kirby. "Once the 100 watt stations are placed, then the FCC will consider 10 watt licenses. It's a question of engineering. When they say the FCC has failed to act, the want to overturn the Act."
"When will 10 watt licenses be granted?" asked the judge.
"What happens in the mean time?"
Kirby said that 10 watt stations cannot broadcast.
The judge quoted from an FCC document that says that LPFM stations do not interfere and recommends that stations be opened up. "What's this?"
Kirby stated that there were major markets where 100 watt stations can't exist. "There are interference problems." Here in Brattleboro, he felt that in time there would be space for stations like rfb in the future.
The judge said "If rfb were to apply for a license they wouldn't get one. A futility argument could be made." Kirby said that rfb could not get a license. Someone else would have to start a station. "They couldn't apply now?" Correct.
Maxwell submitted Exhibit F, the FCC's report to Congress saying that these stations are not a threat. He then called Larry Bloch to the stand.
Bloch stated that he is not doing business as rfb, then gave a a history of the community station's mission to just serve Brattleboro. Starting at 1 watt and following FCC guidelines for operation, the collective of people who are rfb created the station. The group makes decisions by consensus, which can be a slow but effective process. He said that rfb is now at 10 watts " a perfect size for this town."
"When the station began there was no licensing program, so if we could broadcast and behave, we'd serve the community needs and build support." Bloch detailed the FCC letters and visits asking for a license or authority to broadcast, and the steps the station took to get that authority from the community. He said that rfb is not a pirate, adding "the FCC are the pirates, taking licenses away. That's a theft. rfb wants to be legit and licensed.
He was then cross examined by Kirby. "Has rfb applied for a waiver?" No. There is no information about how to apply. "Are you aware of the 1934 Act prohibiting broadcasting without a license?" Laws are people made and serve communities. The FCC has abandoned its responsibility.
"Do you see something in the Act that allows towns to have authority?" The judge interjected, asking if that wasn't a legal question. Kirby continued "Larry's appearance here is quasi-legal.."
Bloch said "When a law is not being enforced, the people have to enforce the law ignored at federal levels, until the federal government decides to..."
Kirby said "You believe anyone can broadcast?" to which Bloch replied "No".
Kirby asked "Do you agree major markets can't bear 100 watt licenses?" Bloch replied "Not really. I'm not an engineer and we aren't arguing for 100 watts. We just want to broadcast here to our town and only our town."
"Are you aware that the order allows 10 watt licenses down the road? So you understand you were broadcasting illegally?" No, said Bloch. "You didn't pay attention," said Kirby. "Is the apartment in your name?" Bloch said there is no "apartment" but there is a rented commercial space. "You signed the lease...?" Yes, said Bloch.
"So you sign documents for the collective?" pounced Kirby. Yes, said Bloch, papers need to be signed to be officially non-profit. "Who else is on the list?" inquired Kirby. Bloch stated that he didn't want to say, but would if it would otherwise be contempt. "Who?" said Kirby.
Under pressure, Bloch said that Steven Twiss also may have signed something. "What's your position listed on the documents?" asked Kirby. Hildes objected to Kirby being argumentative and not relevant, and the judge agreed.
"What's your wattage?" asked Kirby. "10 watts" says Bloch. "Yes, but do you test that?" asked Kirby. "Yes" answered Bloch. "To FCC standards, according to the engineer." Maxwell objected, stating that this questioning was "beyond the scope" of the case being heard. The judge agreed.
Kirby said "But will this station interfere... it is of significance that they control the signal." He added "Nothing further."
Maxwell asked Bloch one final question. "The letter they sent said license or authority to broadcast, right?" Bloch said "Yes."
Maxwell called Pat DeAngelo. Kirby objected. DeAngelo took the stand. She was asked about her job with the town and asked if she was there for the resolution. She said yes, and also attested to the recent town vote in favor of giving rfb the authority to broadcast 1740-787. DeAngelo said she "fervently" supports rfb, and stepped down.
The judge then stated that under the injunction rule the court can combine with a trial on merits, and, in view of that, he was ruling "No" to the request for a preliminary injunction. Further hearings were needed. He wanted to hear more argument about rfb's "authority" issue.
Maxwell said that the authority of the vote is in the Constitution. Hildes said that States and people can exercise this authority when the FCC abandons its regulation. Hildes said that there were 9th and 10th amendment arguments to be made.
The judge said "I'd like to hear them." He added that he wanted to hear more from the government regarding the 401A vs 401B issue, and wanted rfb to distinguish cases, such as US vs. Szoka in the 6th Circuit raising issues between forfeiture and injunction. "You'll be making a free speech argument I presume, and will probably allege and prove futility, correct?" Yes, said the rfb legal team.
The judge wanted to know when and if the FCC will have a 10 watt licensing procedure. "They do," said Kirby. "The 100 watt ..." And also what is a waiver? "OK," said Kirby, adding that he thought it meant that the FCC could waive a license if it wanted to. The judge asked if there was any criteria for obtaining a waiver. Hildes said he knew of no examples. Kirby had no answer.
The judge said that he denies the preliminary injunction and requests the parties submit further briefings before presenting evidence. "How long do you need?" he asked the lawyers. Maxwell requests a year, jokingly, then seriously adds that because this is pro bono work they would like 60 days. Kirby says case law is clear and this should happen sooner rather than later. The judge says "45 days will be given to submit the memos to law - April 30th. The rebuttals until May 21. Then I read them and decide if there is a hearing. The motion to consolidate is consolidated."
Kirby said that they were against it but had no objection, adding "it's your discretion."
With that the judge rose and left the courtroom. People filed out into the bright, crisp morning sun in front of the Post Office and discussed what had just happened.