Series: "Radio with a Conscience: Community Radio in the Late 90s."
This series of articles is dedicated to the exploration of the state and growth of Community Radio in the late 90s.

Article 2: Microbroadcasting meets the law.

by Paul Riismandel

In the first article of this series I introduced the growing microbroadcasting movement. Microbroadcasters are average citizens putting their own very low-powered radio stations on the air in the hopes of serving their communities better and more directly than large corporate-owned stations. These broadcasters go on the air without a license from the Federal Communications Commission (FCC) as an act of civil disobedience, due to the facts that broadcast licensing procedures are extensive and expensive, that many major cities have no open slots left for new stations on the dial, and that the FCC has refused to license small low-powered stations since the early 1980s.

Since my first article was published in early November 1997 there have been a number of significant developments in the world of microbroadcasting. The first development, in fact, is a small step forward for microbroadcasters. On November 12, 1997 Ninth Circuit Court Judge Claudia Wilken released a decision denying the FCC a preliminary injunction in its case against micropower radio station Free Radio Berkeley (FRB) in Berkeley, California, allowing the station to stay on the air for the duration of the trial. She also concluded that the case could be heard in her jurisdiction, denying the FCC’s claim that her court did not have jurisdiction to consider FRB’s constitutional argument. FRB, which has been broadcasting without a license for over five years, is appealing the FCC’s attempt to shut down the station, arguing that the agency’s refusal to license stations broadcasting with less than 100 watts of power is a violation of the First Amendment, keeping broadcasting out of the hands from all but the very rich.

Although, it is the first time in which the FCC’s request for an injunction against a microbroadcaster has been denied in federal court, Judge Wilken’s decision in the FRB case is by no means a clear victory for microbroadcasting. Only when this trial has concluded and Judge Wilken has rendered her decision will the fate of microbroadcasting be partially known. I say partially, since if either side loses this case it is certain that an appeal is inevitable. Further, any decision by Judge Wilken is law only for the jurisdiction of the ninth circuit, although the decision does stand as precedent for any federal court.

It is very apparent that the FCC understands these facts quite clearly. On the morning of November 19, 1997, less than a week after Judge Wilken’s FRB decision was released, the FCC, aided by federal marshals and local authorities, raided and shut down three micropower radio stations operating in the Tampa, Florida area. Temple Terrace Community Radio, Patriot Radio and 87X, Tampa, were all shut down and had any electronics or other items possibly associated with broadcasting confiscated by the FCC. Loni Kobres, the operator of Patriot Radio, was also arrested on 14 counts of operating a broadcast station without a license. Ironically, when Temple Terrace Community Radio was shut down, the radio operations for local rescue and police authorities were also interrupted because operator Doug Brewer also runs a local radio business which provides local authorities with 2-way radio service. Brewer also runs a mail order radio business which offers micropower broadcasting kits as well as fully assembled, ready-to-run microbroadcasting stations. In several interviews Brewer has told of being held at gunpoint and handcuffed for several hours by SWAT team police during the raid on his home/studio during which many items not related to his radio station were also confiscated.

Elsewhere on the East Coast other microbroadcasters from Pennsylvania to Massachusetts have received letters of "apparent liability" from the FCC, essentially telling them that the FCC knows about their station and to get off the air. Some stations have chosen to heed the warning. Radio Free Allston (RFA) of Allston, MA, a community station operating out of a storefront art gallery has decided to go off the air for the time being while they assess their situation. RFA operates with the explicit approval of the Allston city council and with the participation of much of the community, providing daily programming very similar to stations like WEFT. Operator Steven Provizer has told me that RFA does not plan on being silent for long. Provizer has been working with local businesses, civic organizations, lawyers and the American Civil Liberties Union in order to devise a ready defense strategy so that RFA, like FRB, is ready when the FCC knocks at their door.

Radio Mutiny in Philadelphia also received a letter from the FCC. Rather than go off the air, this station has decided to go "underground," abandoning their permanent studio and operating from varied unannounced locations all over the city. Radio Mutiny has even announced plans to go on a tour of other cities bringing their transmitter and broadcasting know-how to other communities interested in having a radio voice.

With so many high-profile events happening in microbroadcasting in just a couple of months, the mainstream media has finally taken a look. Articles on microbroadcasting have appeared in such establishment publications as the Wall Street Journal, the New York Times, and the Christian Science Monitor. Suprisingly, some of the coverage has been fairly balanced, and even some editorial pieces have appeared even supporting microbroadcasters in their first amendment plight.

The National Association of Broadcasters (NAB), the nation’s largest broadcasting trade group, has put in its two cents as well, issuing a statement commending the FCC’s action against microbroadcasters and urging more and swifter action. That the NAB considers microbroadcasting a threat is at once both funny and unsurprising. Even when broadcasting at the same frequency, the largest threat a 10 or 20 watt station is to a 10,000 or 20,000 watt commercial station is a interference for a block or two around the tiny transmitter. Going head-to-head against the megawatt power of most commercial stations is like a mosquito doing battle with a bug zapper. Microbroadcasters want their stations to be heard, and therefore do not want interference any more than the big stations. Therefore most microbroadcasters, like Free Radio Berkeley and Radio Free Allston, choose their frequencies carefully to be free of interference using the same methods as required by the FCC. At worst microbroadcasters steal away a few listeners looking for an alternative to mainstream radio. Yet it appears the NAB and the FCC view them as bomb-throwing saboteurs ready and able to tear down their multi-million dollar empires. At the same time hardly any microbroadcaster makes a dime off a station, and most pour thousands of dollars into their operations. Still, competition—no matter how miniscule—is competition.

As I mentioned before, the future of microbroadcasting is still up in the air. At least one federal judge believes that the case of microbroadcasting present serious first amendment issues that must be weighed. Yet, the federal government can be expected to act as though the public’s interest is truly being served by megawatt stations broadcasting Rush Limbaugh or the same 40 songs, all day long, frequently without a human on the air at all. It will continue to presume that microbroadcasters do not and cannot enhance this environment, instead presenting a significant threat to the public’s (read corporation’s) interests. In the end we can only hope that the Constitution will be the guide, telling us if it really is right that only the rich and powerful have a right to our airwaves.

©1998, 1999 Paul Riismandel, all rights reserved.

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