US v. Weiner, Civ. A. No. 88-1817-Mc.

• Decision Date: 13 December 1988
• Docket Number: Civ. A. No. 88-1817-Mc.
• Citation: 701 F. Supp. 14
• Parties: UNITED STATES of America, Plaintiff, v. Allan H. WEINER, Joseph Paul Ferraro, Randall Ripley a/k/a Randi Steele, Hank Hayes, Richard Hertz, John Hungerford, and John Doe, all d/b/a Radio New York International ("RNI"), Defendants.
• Court: U.S. District Court — District of Massachusetts

701 F. Supp. 14

UNITED STATES of America, Plaintiff, v. Allan H. WEINER, Joseph Paul Ferraro, Randall Ripley a/k/a Randi Steele, Hank Hayes, Richard Hertz, John Hungerford, and John Doe, all d/b/a Radio New York International ("RNI"), Defendants.

Civ. A. No. 88-1817-Mc.

United States District Court, D. Massachusetts.

December 13, 1988.

Eileen M. Hagerty, Asst. U.S. Atty., Boston, Mass., for plaintiff.

John Reinstein, Mass. Civil Liberties Union Foundation, Boston, Mass., and Jeremiah Gutman, New York Civil Liberties Union Foundation, New York City, for defendants.

MEMORANDUM AND ORDER OF SUMMARY JUDGMENT

McNAUGHT, District Judge.

On October 17, 1988, a temporary restraining order was issued, enjoining the defendants from broadcasting from the vessel SARAH, which was then located four miles off Long Island, New York. The vessel was described in a news release by a Boston newspaper as a "pirate seagoing rock `n' roll station".

Plaintiff has since moved for summary judgment, insisting that, on the undisputed material facts, it is entitled to permanent injunctive relief against the defendants. Defendants ask for summary judgment also seeking to have plaintiff enjoined from interfering with the defendants' broadcasting on the AM radio band between 1605 and 1705 kilohertz. Allan H. Weiner and the other defendants claim an entitlement to a declaration from this Court that they have a right of access to the "open and unused" radio broadcast spectrum described above. They claim a "constitutional right to freedom of expression over the public forum of the airwaves ... (and) ... access to unused and open broadcast frequencies for the purpose of disseminating their views to the public" so long as they meet "all reasonable and narrowly drawn government requirements relating to technical and procedural matters such as noninterference and maximum power". (Defendants' Memorandum of Law in Support of Motion for Summary Judgment, p. 1). Mr. Weiner has agreed not to broadcast until his rights are determined here.

Indeed, the material pertinent facts appear to be undisputed. Defendants have conducted operations under the name Radio New York International. Mr. Weiner is its chief engineer. Randall Ripley, John Hungerford, and Joseph Paul Ferraro are associated with him in Radio New York International. Mr. Ripley, Richard Hertz and Hank Hayes are disc jockeys. None of the defendants has an FCC license to broadcast.

In the month of July, 1987, several of the defendants were involved in the broadcast of music without a license from international waters, utilizing the same vessel outside the United States. The Coast Guard and and agents of the Federal Communications Commission boarded the SARAH and silenced the broadcasts.

The complaint in this action was filed August 5, 1988, with the plaintiff's motion for injunctive relief and supporting affidavits. From sometime in 1986 to August of 1988, the SARAH had been the property of Mr. Ferraro. He then transferred her to Mr. Weiner whose property she remained until October 4 of this year, when Mr. Weiner sold her. Mr. Weiner sold the vessel to an English corporation (Atlantic Radio Communications, Ltd.), with a five-year option to repurchase her and her radio equipment at the price at which he sold her, plus interest. It is Mr. Weiner's intention (Affidavit, Docket Document # 21) to re-buy the SARAH, if the courts rule in his favor, and then to use her to broadcast from international waters on "an open and unused broadcast frequency". The issue in this case is his right to do so.

The government alleges that defendants are in violation of international and federal law, and intend to violate both of them in the future; that "numerous" AM, FM, and shortwave radio stations would be subject to interference from future Radio New York International broadcasts. The plaintiff asserts as well that members of the listening public who rely on certain licensed programming for information and entertainment may have such programming disrupted.

The relevant international authority upon which the government bases a portion of its complaint is the International Telecommunication Convention—the basic instrument of the International Telecommunication Union of the United Nations. The Convention became effective in this country in 1986. It governs radio broadcasting between nations and on the high seas. Article 42(1) provides that "the provisions of the Convention are supplemented by Administrative Regulations, which regulate the use of telecommunication and shall be binding on all members." Certain of these are known as Radio Regulations. Article 30, section 1(1) of the Radio Regulations prohibits the establishment and use of broadcasting stations on board ships outside national territories. The FCC has adopted the Radio Regulations. 47 C.F.R. § 2.100 (1987).

As plaintiff has argued, the facts are (1) the defendants made the broadcasts in 1987, and (2) it is their declared intention to make future broadcasts from the SARAH outside the territory of the United States. Article 30, section 1(1) of the Radio Regulations and 47 C.F.R. § 2.100 have been and will be violated unless an injunction issues.

The government points also to the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-611 and relevant regulations thereunder as an example of federal law which has been violated by defendants. Sometime after the action was filed in this Court, defendants registered the SARAH in the state of Maine. Although of Honduran registry formerly, the SARAH is now a United States vessel. The Communications Act, section 301, prohibits unauthorized broadcasting within the United States and from "any vessel or aircraft of the United States". 47 U.S.C. § 301(e). (There is one exception to the statute, but it does not apply here). The defendants' broadcasts in the past and those which were planned for the future constitute radio communications of the type that the Act, the Convention, and regulations seek to prevent. By reason of these violations, the interests of the general public have been harmed already.

The position of the government is strengthened by the fact that the radio "spectrum" is not large enough to accommodate an unlimited number of users. Where more than one broadcaster attempts to use the same radio frequency, interference results. Regulation therefore is essential to the orderly use of the nation's airwaves.

Defendants' response is bottomed on the proposition that the broadcast spectrum is a "natural phenomenon, like oceans and meadows and mountains and lakes"; that it is not the property of government and that, as such, is analagous to "streets, parks, and public places" where a member of the public would have the right to speak, subject to reasonable restrictions as to time, place and manner. Se...