They Did (Almost) the Right Thing

On Thursday, January 20, the Federal Communications Commission voted in a new era in radio broadcasting. Just under two months from now hundreds upon hundreds of applicants will be filing for local broadcasting licenses from the FCC. Not so long thereafter, at a cost of as little as $500 or $1,000, grassroots groups, trade union locals, churches, schools...will crank up their transmitters and the great moment resisted with every sinew and dollar of the National Association of Broadcasters will have arrived.

It all started years ago, in 1988 to be precise, with a blind black man, Dwayne Readus, later renamed Mbanna Kantako, in the John Hay Homes housing project (since demolished) in Springfield, Illinois--this project then being home to virtually the entire black population of Springfield. Readus bought two black boxes out of a catalog, connected them to a microphone and an antenna, and opened up a tiny station in his apartment. He began broadcasting Human Rights Radio at one watt of power (a typical FM station may use 50,000 watts) to his fellow tenants, transmitting what the cops were up to in the neighborhood and other information unavailable on the mainstream stations in conservative southern Illinois. The police didn't care for this kind of publicity and tried to shut Readus/Kantako down.

A local prof relayed this battle to the National Lawyers Guild, and Peter Franck, a San Francisco-based attorney with a lot of experience in community broadcasting, started up a Committee for Democratic Communication within the Guild, to defend Kantako and to try to recover some of the publicly owned airwaves stolen from we-the-people decades earlier. Kantako sparked a decade of civil disobedience, as low-watt broadcasters, mostly operating at a range of under five miles, fired up their transmitters without the sanction of a license from the FCC. Among those targeted by the FCC was Steve Dunifer, a white, bearded anarchist in the Bay Area who started up Free Radio Berkeley. Aided by another capable Bay Area attorney, Luke Hiken, Dunifer simultaneously embarked on a prolonged battle in the courts to vindicate his position that free access to the airwaves is a constitutional right. Though she ultimately disappointed Dunifer on a somewhat bizarre ruling on standing, federal judge Claudia Wilken gave him and the low-watt movement the all-important credential they needed. She recognized that the constitutional argument had merit. Overnight, "pirate radio" became "micro-radio."

Amid the legal battles of Dunifer and an increasingly nasty campaign against micro-broadcasters instigated by the National Association of Broadcasters in 1997, William Kennard, newly installed chairman of the FCC, announced early last year that his agency was contemplating the legalization of low-power FM. Last spring the FCC issued its proposed rules governing the new stations. Franck and the Guild's CDC put together a national coalition to push the FCC into reformulating its rules, with insistence on non-commercial service, one station per license holder, local license holding and no absentees, local programming, and licensees to be un-incorporated, not-for-profit associations.

On January 20 they got a lot of what they wanted. The five FCC commissioners voted 3-2 to authorize two new classes on low-power, non-commercial FM: one class with power from 50 to 100 watts and the other, one to 10 watts. The new stations can operate throughout the entire FM spectrum and will be available to non-profits and local educational associations. To quote the FCC news release: "the Commission said that to further its goals of diversity and creating opportunities for new voices, no existing broadcaster or other media entity can have an ownership interest or enter into any program or operating agreement." Ownership for the time being has to be local, although after three years "eligible entities" will be able to own up to ten low power stations nationwide.

There are two significant failings to the FCC decision. On supposedly technical grounds that have been strenuously challenged, the FCC maintains there is insufficient FM spectrum space for the new micro stations to operate in crowded big city markets like Los Angeles or New York. This is particularly absurd, given that the commissioners asserted in their January 20 statement that their decision took into account the huge media concentration following telecommunications "reform" in 1996. In other words, they said: We are creating more choice, but in major cities (where most of the audience is) we will forbid choice because of the unwholesome concentration we previously sanctioned. In fact, the separation requirements are entirely arbitrary and should be challenged at once, on the grounds that only proven interference with an existing station would require separation.

The FCC also says it will penalize micro-radio pioneers whose demand has always been full amnesty, not to mention return of all property and equipment seized by the feds. Franck says it's as though, after the bus boycott in the 1960s, everyone could ride the bus except Rosa Parks.

So what pushed the FCC in the right direction? Franck reckons the hard legal work of the past few years paid off. Kennard and his fellow commissioners knew they were vulnerable not only in U.S. courts on free speech grounds, but also internationally. Kennard was also well aware that in recent years the FCC has amiably presided over pell-mell concentration in ownership and that the agency could be accurately perceived as the errand boy of the broadcasting industry. So the new low power FM stations are the FCC's single sop to its critics. And finally, neither the FCC nor the broadcasting industry could have been enthusiastic at the prospect of another era of civil disobedience, as micro-broadcasters took to the airwaves and the courts.

So there's the good news. In about two months the FCC will open a five-day filing window for applications. So make sure a group in your local community is prepared. For advice you can consult the National Lawyers Guild's Committee for Democratic Communications website at www.nlgcdc.org or phone 415-522-9814.