Friday, June 24, 2005


STATEMENT: Radio Free Brattleboro's lawyer on "no harm"

June 22, 2005
Posted by paul at June 22, 2005 11:31 AM | TrackBack

Radio Free Brattleboro Raided Today

I didn't see this coming, since, as John pointed out, Radio Free
Brattleboro's case with the FCC is still pending in court, and the Feds
only recently asked for a summary judgement. In fact, last year, the judge
in the case ruled against the FCC's request for an injunction to shut down
the station while the case was pending.

Nevertheless, the station has been shut down:

At 6:58 this morning, June 22, 2005, armed with a warrant issued by a
Burlington magistrate, United States Marshals entered the studios of radio
free brattleboro and seized its broadcasting equipment. The seizure of
equipment and shutdown of rfb.s local broadcasts under authority of a
warrant issued in Burlington comes while an action is still pending before
Judge J. Garvan Murtha in the federal court in Brattleboro.
Click through to read the rest of RFB's press release:

In March of 2004 radio free brattleboro filed for an injunction in the
District Court in Brattleboro, asking the Court to prohibit the FCC from
seizing equipment. The United States District Attorney, representing the
FCC, filed a reciprocal action for injunction to shut down the radio
station. These dueling actions were finally whittled down to one action
and the rfb request for injunction was dropped, due to the following
statement in a filing made by the United States:

In its suit, rfb seeks to enjoin the FCC from seizing its equipment or
from stopping it from broadcasting without a hearing. Because neither of
these eventualities are threatened, the suit is essentially moot. The FCC
has chosen not to try to seize the equipment of rfb but to proceed by way
of a preliminary injunction. Thus, there is no controversy about imminent
seizure of equipment for this Court to remedy or enjoin. Moreover, since
rfb is receiving a hearing on March 15 [2004], it will not be stopped from
broadcasting without a hearing. Thus, the matters that it asks to be
remedied do not need a remedy.

This constituted the Government.s assurance that it contemplated no
seizure of rfb.s equipment and rfb did drop its own action for an

In April of 2005, with matters still pending in the U.S. District Court in
Brattleboro, rfb received a letter from the U.S. Attorney.s office in
Burlington stating that the FCC was .prepared to pursue other law
enforcement remedies . . . .. Rfb was puzzled by this new threat, as it
had dropped its original action for an injunction because of the
Government.s assurance that the regular court process in Brattleboro would
be the venue for the dispute. Accordingly, rfb replied to the U.S.
Attorney.s office stating:

The radio station has continued operating because the FCC.s complaint to
the court has yet to receive a ruling either on the preliminary or
permanent injunctions you [FCC] seek. Your review of the file doubtless
informs you that rfb originally applied for an injunction to bar the FCC
from exactly the action you now contemplate, under 47 U.S.C. ยง 510. The
station voluntarily agreed to a dismissal of its complaint for injunction
because of the pending injunction petition put in by the FCC. In the given
posture, I do not believe this district court or any appeals court will
say that rfb was obliged to shut down: shut-down is precisely the question
for which we await the judge.s answer. Your threatened action is,
therefore, an end run, is it not?

On May 3, 2005, the Government filed for summary judgment in the case
pending in Brattleboro. Radio free brattleboro responded to that motion
and therefore the FCC.s case asking for an injunction to shut down rfb
remains, today, in the hands of Judge Murtha in Brattleboro.

Radio free brattleboro.s attorney, James Maxwell, commented: .This is on
one level no surprise. The FCC has run out of patience with the regular
court process in Brattleboro and has gone elsewhere for the relief it
seeks, namely, a chance to get the U.S. Marshals into the station to grab
the equipment. Radio free brattleboro has a case with substantial and
legitimate legal issues pending in the federal court here in Brattleboro,
and the station has also applied to the FCC for a waiver to broadcast, and
it has repeatedly stated that when the newly licensed 100-watt station is
up and running it would step aside. Rfb does not operate in defiance of
government but rather from the belief of its members and listeners that
community radio is essential to good government and democratic process.
Radio free brattleboro has always stressed to the public and to the FCC
that it will adhere to FCC guidelines and will serve the public whether
licensed or not. Nevertheless, it is very much a surprise that the FCC has
done an end run around the court here in Brattleboro and obtained a
warrant from Burlington.even while diverting our attention by applying for
summary judgment here. It has undertaken these clever maneuvers, in my
opinion, not because it must shut down the station but because it can shut
down the station. For there is no harm whatsoever being done by rfb, while
there surely is harm being done to a civil society by the broadcast and
cable and satellite conglomerates whose idea of serving the public is to
process entertainment, information and advertisements for mass
consumption, which is to say for no one at all. It.s a sad and
disappointing day, but of course we will explore our options..

Posted by paul at June 22, 2005 11:31 AM | TrackBack

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