For many years I observed that most members of both major parties seldom follow the Constitution. In 1992, I watched them work together to have Libertarian Party candidates excluded from the National Debates. Even though LP candidates were on the ballot in all 50 states, they were threatened with arrest when they tried to join the debate. This was a violation of the Copenhagen Agreements1 of which the U.S. was a signatory.
Witnessing this event changed my life. I realized my reliance on voting as a political expression was hopelessly futile. I could see the two parties actually had a common objective. Their goal was to avoid defending America's founding principles. Otherwise, they would not have feared debating candidates whose primary focus was the U.S. Constitution. I wondered why I had bothered to serve my country, if its founding principles weren't important.
In 1992, my membership in the LP enabled me to meet "Wild Bill" Halbert of Wills Point, Texas. My worst fears were confirmed when Bill told me the following story. Government at all levels is operating in an emergency mode. It no longer gives anything more than lip service to the U.S. Constitution. Officials at the highest levels are working to gradually bring the sovereignty of America to an end. They privately believe that the concept of independent nations is obsolete. They want to help erect a one world government utilizing the United Nations and its military.
Although the hidden agenda of the two major parties is kept concealed by the major media, I could see that evidence existed that proved conclusively that the information Wild Bill had provided was true. A future under UN domination was not my idea of the good life. I believed that informed Americans would not stand idle while their free republic was transformed into a UN-dominated police state. In order to inform others, I initially used hand-outs. While listening to talk radio shows, I learned that some concerned Americans were using low-power FM broadcasting to help warn their neighbors. I decided to make use of use my knowledge of radio broadcasting to help alert my neighbors to the plan.
I had acquired a First Class Commercial Radio Operator license about fifteen years earlier. There is no FCC station license available for low-power FM in my area, or I would have obtained one. My affiliation with the Libertarians had allowed me to acquire a good understanding of the Constitution, as well as the intent of the Founders as expressed in the Federalist Papers. I knew that the Federal Communications Commission had no valid authority over radio transmissions whose effect was limited to the area around Lutz, Florida. I placed the first low-power FM station on the air in Lutz in February of 1995.
What I didn't know-
My electronics company had provided services for the Tampa FCC office on several occasions. We worked well together and were on a first name basis. When they first learned of Lutz Community Radio, I requested that they not take action against me before Chief Engineer in Charge, Ralph M. Barlow, could contact me so that we could discuss the matter. I had already decided that if Ralph Barlow personally assured me that charges were pending against me, I would shut the station down.
What I didn't know was that Ralph Barlow's friendship was artificial. He never bothered to tell me that the FCC was planning to file charges against me. During Barlow's testimony against me at trial, I learned that he never even read the material I had given him that cited the basis for my operation.
What I didn't know was that federal agents in Tampa were so oppressive that they would sanction a 14 count criminal indictment for simply operating a small, non-profit, community radio station. In every other similar case the FCC had obtained a Cease and Desist order to silence a radio station. In my particular case, they apparently wanted blood. They weren't satisfied to simply silence the station. They wanted to destroy me personally.
What I didn't know was that a U.S. grand jury is nothing more than a rubber stamp for the U.S. government. I was denied my Sixth Amendment protected right to face my accusers during the Federal indictment. If you're not present to counter the government's lop-sided story, then you're toast. A grand jury is no longer a self-guided fact-finding body that recognizes its' major responsibility is to protect innocent citizens from the arbitrary application of excessive government power.
Once Barlow had forsaken our previously good working relationship in preference to the use of force, the only thing I could do was try to account for my actions in court. When I was preparing for my Commercial Operator license the FCC had supplied me with a 266 page study guide. The Study Guide clearly stated on page 121 that the FCC had no jurisdiction over the type of transmissions I had made: intrastate transmissions. The FCC had never brought to my attention any other law that may have modified what the guide had taught me on page 121.
My FCC study guide was shown to the prosecutor, United States Assistant Attorney, Ronald Tenpas. He was told that I intended to use the guide as an authority for making the allegedly illegal radio transmissions. Tenpas seemed to be very concerned about the existence of my study guide. What I didn't know is that in politically motivated cases such as mine, the trial is especially scripted.
Upon Tenpas' motion, Federal Judge Henry Lee Adams denied my right to use the FCC study guide as exculpatory evidence. The study guide had not been part of the script. The suppression of it amounted to jury tampering. The jury, oblivious to its true responsibilities, didn't flinch. I requested that the study guide be returned to me. My request was denied. Fortunately, I was able to acquire an identical copy of the study guide.
My constitutionally based defense was supported perfectly by the study guide. Even without the guide, a motion for dismissal based on a lack of constitutional jurisdiction needed to be filed. That would allow the same issue to be brought forward on appeal. The two other defenses I relied on were the FCC's violation of the Administrative Procedures Act and Paperwork Reduction Act. My attorney, Larry Becraft, did a reasonably good job presenting the three motions at trial.
Later, I learned that Becraft should have challenged the indictment process, because it is often flawed. I also learned that he should have immediately motioned for an evidentiary hearing at the beginning of the trial. It would be impossible for the FCC to show a properly maintained "chain of evidence". It is a fact that numerous radio signals of identical characteristics exist simultaneously on the same frequency. It is impossible for the FCC to account for each signal once it leaves its antenna, to track it, and measure it. Not a single expert witness was called by Becraft to point out the impossibility of verifying whose transmissions had been exclusively measured.
Acting according to the script, Judge Adams denied all three of our motions. With most factors working against me during the trial, the outcome was predictable. While the government made a major issue over the fact that my transmissions were not licensed, the truth is that there was no license available to me. Nevertheless, the government's well-managed jury found me guilty of making 14 unlicensed radio transmissions on 14 different dates.
I had learned from Larry Becraft, just prior to the trial, that the FCC claimed the Communications Act of 1982 had amended the information I had learned on page 121 of the FCC study manual. It would have been more appropriate for the FCC to have been the one that told me about this attempt to amend Section 301 of the Communications Act of 1934. And this should have been done prior to filing any charges against me so that I could have considered it. It is this unchallenged 1982 legislation that purports to give the FCC jurisdiction over radio transmissions with an effect confined to a single state. Anyone who has studied the Constitution knows there can be no valid basis for this type of legislation!
It was agreed that Larry Becraft would file the appeal. The primary goal would be a first-time-ever challenge of the constitutionality of the Communications Act of 1982. The government does not want any challenge of the Act. It can be very difficult to deal with unconstitutional legislation that protects big business interests.
Those familiar with government courts know that it can be dangerous for anyone, even an experienced lawyer, to seriously challenge governmental power. Apparently, Larry Becraft was intimidated. At the last minute he broke our agreement and did not include our challenge to the Communications Act of '82 in the appeal brief! Over my strenuous objection, he filed the appeal based only on the FCC's violation of the Administrative Procedures Act (APA) and Paperwork Reduction Act (PRA). He left out the most important element, the constitutional challenge to Sec. 7 of the Communications Act of 1982.
The FCC had let me down from the beginning. Now, the entire legal system was letting me down. My only hope was an Amicus Curiae brief that constitutional patriot, P.D. Maas of Arizona, had volunteered to submit. The Maas brief did contain the constitutional challenge to the FCC's claim of intrastate jurisdiction, but again, the government employed its tactic of blocking and/or obstructing any significant challenge to its power. It denied admission of the Maas brief. And it did so without any explanation.
On August 12, 1999, in an unpublished and unsigned per curiam decision, the 11th Circuit Court of Appeals ignored enacted law and affirmed the trial court's finding based on judge-made law.
In order to carry the force of law, all FCC forms are required by the APA and PRA to be numbered and published in the Federal Register. The forms are not numbered or published. The sad reality is that when the government violates the law it can almost always be justified. Displaying a shocking disrespect for its true responsibilities, the appeals court did not analyzed my defense at all.
From Page 4 of the Appeal decision: "...we need not address Kobres' argument if we conclude his duty to obtain a license is found in a statute rather than in a regulation or form," citing U.S. v. Neff (1992) and U.S. v. Hicks (1991). Bottom line: Case law was cited as justification for the 11th Circuit Court of Appeals to evade higher law enacted by the U.S. Congress.
The referred-to statute does not carry the force of law, since it has not been implemented in conformance with APA and PRA requirements! The decision in my appeal was not based on legitimate law written by duly elected members of the legislative branch of government. The decision has been based on illegitimate law written by unelected members of the judicial branch. This is a direct violation of the separation of powers doctrine.
"To consider the judges as the
ultimate arbiters of all constitutional
Finally, federal judges reserve oral arguments only to special cases that require clarification. It is interesting to note that the appeals court scheduled oral arguments in my case, then issued a per curiam decision - two highly inconsistant actions. The goal was to produce an illusion that justice was being sought - that I was being afforded every conceivable opportunity to prove my case. In reality, oral arguments were scheduled in this case in an attempt to camouflage a selective and vindictive prosecution.
The individuals responsible for my persecution/prosecution believed that they could break my patriotic spirit. They may have thought it would cause people to avoid associating with me. If the government declared I was a criminal, then I must be one. None of this has happened2. The fact remains that we have a Constitutionally protected right to operate a radio station if that station is either non-commercial, or its signals have no effect in another state. That is all I have ever sought to do.
1 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 29, 1990, Article I, Section 7.7. "ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution;" [return]