Pirate Radio Fights for Free Speech

A federal district court judge in San Francisco cracked open the door to free speech on the radio this past November when she ordered the Federal Communications Commission to explain why shutting down a Berkeley, Calif., low-power broadcaster would not violate the First Amendment.But free speech was not what FCC agents had in mind a week later when they led an armed task force in dawn raids against three "pirate radio" microbroadcasters near Tampa, Fla. While FCC lawyers challenged the San Francisco district court's authority to judge the constitutionality of their rules, FCC agents across the country continue to force unlicensed broadcasters to shut down or face fines and prison.Federal authorities raised the stakes November 19 with the arrest of Arthur Kobres, who reportedly had been operating Lutz Community Radio, 96.7 on the FM dial, broadcasting what the Tampa Tribune described as "anti-government material." Kobres, 53, was charged in a 14-count federal indictment with operating a radio without a license. The FCC previously had confiscated his equipment on March 7, 1996, but he managed to get back on the air the next day.In February, after a two-day trial, Kobres was found guilty on all counts. Each charge, representing a day the FCC determined he had broadcast illegally, carries a possible two-year prison sentence plus fines. Kobres remains free on $25,000 bond pending sentencing, which was set for May 13. His attorney Lowell Becraft of Huntsville, Ala., told the Tribune the case may be the first time an unlicensed radio operator has been prosecuted on criminal charges.According to the Tribune, Becraft said he will appeal the case and try to get the law declared unconstitutional. He said Congress overstepped its bounds when it allowed the FCC to regulate radio stations that don't transmit signals across state lines. U.S. District Judge Henry Lee Adams Jr. rejected that argument during the trial.Kobres said after the verdict: "I don't think anybody understands the Constitution. I think we're losing our country, and this is evidence of it. And I think the American people are willing slaves."Other unlicensed operators who were shut down in the Tampa area raids include Doug Brewer, who reportedly has operated a low-power station called "The Party Pirate" for the past three years. A gang of 20 armed agents and law officers reportedly broke down his door, then held him and his wife at gunpoint while they seized his equipment and brought in a crane to destroy his 150-foot antenna. Another microbroadcaster, Kelly Benjamin, 22, was charged with possession of marijuana and drug paraphernalia found during the raid on the unlicensed station "87X" in Seminole Heights.Radio pirates, whose unlicensed broadcasts feature everything from community talk shows and city council meetings to punk rock and militia rants, say the microbroadcasting movement is a response to the concentration of radio stations in the hands of large corporations. In many cases the corporations pipe in programming from New York or Los Angeles and care little for community needs. Corporate control has tightened since passage of the Telecommunications Act of 1996, which removed many of the limits on corporate ownership.In the past two years under the new rules, which allow corporations to own as many as eight radio stations in each market, more than one-third of the 12,000 commercial radio stations in the United States have been sold. Westinghouse/CBS consumed Infinity Broadcasting in a $4.9 billion merger that brought together 83 stations in 15 of the nation's largest markets. Then CBS bought another 98 stations. The Dallas investment firm of Hicks, Muse, Tate & Furst Inc., which set up Capstar Broadcasting Partners in 1996 to take advantage of the new regulatory climate, has bought 407 stations since passage of the bill -- most of them in small to mid-sized cities -- to make it the largest in number of stations and second only to Westinghouse/CBS in ad revenue. The nation's top 10 radio groups boosted their holdings from 652 stations to 1,134, USA Today reported. As prices soared, the portion owned by minorities, already a scant 3.1 percent, fell to 2.8 percent."Given the incredible concentration of media resources and broadcast resources into a few hands, micropower broadcast is a way to give the people a voice," said Stephen Dunifer of Berkeley, a self-styled anarchist and community organizer who has operated Free Radio Berkeley with a low-power transmitter since 1993.Free Radio Berkeley broadcasts community news, talk and music 24 hours a day. Its 90 volunteers generally are on the left of the political spectrum. The station is unlicensed but its 30-watt broadcasts, whose signals reach about 10 miles from the source, are not necessarily illegal after Federal Judge Claudia Wilken in 1995 rejected the FCC's request for a preliminary injunction. The FCC then asked for a permanent injunction and argued that Judge Wilken could not consider the issue of whether the FCC rules are unconstitutional. The government claimed that only higher federal courts could consider the constitutional question.This past November Judge Wilken rejected the FCC's request for a permanent injunction. The judge found merit in Dunifer's claim of First Amendment protection and ordered the feds to argue the case, which appears headed for a trial. As for the government's claim that the district court lacks the jurisdiction on constitutional questions, Judge Wilken noted that the FCC took the opposite position in the 1994 case of Dougan vs. FCC. In that case, an Arizona microbroadcaster had appealed an FCC fine for broadcasting without a license to the 9th Circuit Court of Appeals, and the FCC had argued that the appeals court had no jurisdiction over the case. The appeals court agreed with the FCC and sent the case back to the district court (which upheld the FCC).The FCC notes that the Supreme Court in 1969 upheld the government's authority to limit broadcast licenses. In Red Lion Broadcasting Co. vs. the United States, the high court held, "Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to monopolize a radio frequency."FCC officials say microbroadcasters are a threat because their signals interfere with law enforcement and air traffic broadcasts. They have said the Florida pirates were shut down after complaints from air-traffic controllers, although the Tampa Tribune also quoted the general manager of five local stations who had complained to the FCC that the Party Pirate's proximity to one of his stations was confusing his listeners. Dunifer also notes that air traffic communicates at 118 to 135 megahertz, far from his signal at 104.1 megahertz.FCC Chairman William E. Kennard has disputed complaints that the FCC's policies are designed only to benefit "rich corporations." He has reiterated that the commission will not condone illegal broadcasting, but as a concession he has proposed licensing stations operating at 1 watt or less, which would allow a signal to reach no more than a few square miles. He is accepting comments on that proposal. (See box above.)Before 1980, students and nonprofit groups could apply for Class D licenses, which allowed them to broadcast up to 10 watts. Then, after the Corporation for Public Broadcasting complained that the microbroadcasters were cluttering the noncommercial band, the FCC ordered all stations of less than 100 watts to stop broadcasting.Mbana Kantako of Black Liberation Radio in Springfield, Illinois, coined the term micro power broadcasting in the late 1980s and the movement received a boost in the past few years with Dunifer's legal challenge. The National Lawyers Guild's Committee on Democratic Communications, in a "friend of the court" brief in Dunifer's case, pointed out that "FCC regulations make it impossible for all but the very wealthy to even apply for a broadcast license. ... This is the equivalent of saying anyone could speak from a soap box in the park, but the box had to be made of gold."Guild attorney Peter Franck commented, "In an era when Disney owns ABC, the world's largest defense contractor owns NBC and CNN merges with Time, which merges with Warner, and when 'public' broadcasting is told to get its money from corporations, micro radio may be our last best hope for democracy on the air ways." He added "Judge Wilken's decision is a courageous rejection of the Government's attempt to use a legal Catch-22 to avoid facing the fact that its ban on micro radio flies in the face of the Constitution."Dunifer, 46, has been called the Johnny Appleseed of the microbroadcasting movement. He started with a transmitter, sometimes powered with a car battery tucked into a backpack when he literally went into the hills, "going mobile," as he put it. But the station organizers had talked with attorneys before they went on the air and they were looking forward to confronting the FCC in court. "We felt we had a good constitutional basis for challenging them," Dunifer said. The station, which is marking its fifth anniversary this month, has been at a fixed location for the past three years and it has attracted community support. From his home, Dunifer also sells do-it-yourself transmitter kits that can put a microbroadcaster on the air for under $2,000. He said demand for the kits has been steady. In addition to hundreds of low-power stations in the United States, he has sent transmitters to Chiapas and Haiti."Ultimately what we want to see is creation of a low-power, deregulated community broadcast service," he said. "Our tactic is basically to get enough stations on the air to force the FCC to acquiesce and work with us to create a situation that's acceptable to everyone."Dunifer acknowledged that the airwaves are crowded, particularly in metropolitan areas, but he added, "We can find holes just about anywhere. There are lots of places across the country where it's not a problem [to find a vacant frequency]."After the SWAT raids in Tampa, Dunifer said, "This certainly shows that the FCC has nothing but contempt for due process and the Bill of Rights. It is clear that the FCC is carrying out its marching orders given to it earlier this year by the National Association of Broadcasters who have begun a search and destroy campaign against micropower broadcasting."The Radio Board of Directors of the National Association of Broadcasters on January 12 commended the enforcement efforts of the FCC and Department of Justice and urged the creation of a special task force within the Justice Department. "We stand ready to support the government's effort to eliminate unlicensed radio broadcast stations in the United States," the commercial broadcasters stated.Dunifer replied, "Both the FCC and NAB can kiss my Bill of Rights." In a memo, "Liberating the Airwaves -- Events & Strategies," posted on his web site (www.freeradio.org), Dunifer wrote: "Our strength rests in the court of public opinion." To that end he helped organize a national teach in during the week of February 16 under the banner of "Who Owns the Airwaves?"This month, Radio Mutiny, an unlicensed station in Philadelphia, plans to sponsor an East Coast Micropower Broadcasting Gathering the weekend of April 3, followed by a West Coast Gathering in Las Vegas on April 6-8 to coincide with the National Association of Broadcasters' convention (which features the induction of Rush Limbaugh into the Broadcasters' Hall of Fame). In addition to a clinic for the repair and tuning of transmitters, the micropower convenors plan to confront the NAB and set up a micropower station to be put on the air for the duration of the gathering and handed over to the community when the pirates leave.This summer, a coalition of more than 30 community-oriented radio stations, both licensed and unlicensed, plan a Grassroots News and Media Conference & Culture Jam, June 19-21, in Austin, Texas. (For information email grassroots@tao.ca or write Tony Truong 4522 S. 2nd St Austin, TX 78745.)Although there are thought to be about 1,000 microbroadcasters in the United States, many are on-and-off operations. Some microbroadcasters who are operating more or less in the open are Radio Free Allston, in Massachusetts, which has the support of the Boston City Council; Excellent Radio, which broadcasts City Council meetings live in the Central California town of Grover Beach; and Kind Radio in San Marcos, Texas (see the accompanying column by Juan Palomo).The founder of Kind Radio, Joe Ptak, 39, got a taste for First Amendment issues with the Hays County Guardian, an alternative newspaper in San Marcos, which is approximately 30 miles from Austin. When the Southwest Texas State University administration banned distribution of the newspaper on campus in 1989, the Guardian took the university all the way to the Supreme Court. In 1992 the court ruled that the Guardian was noncommercial, since its advertising only covered production costs, and the prohibition was illegal. The newspaper was awarded $5,000 damages and approximately $200,000 in attorney fees.About two years ago, Ptak heard about Free Radio Berkeley and decided the Guardian should branch into radio. (The newspaper has devolved into a one-page program guide for the radio station.) One week before they went on the air in March 1997, Kind organizers sent a letter to the FCC telling of their plans. A few weeks later, two field agents visited Kind, informed them that they were in violation of FCC regulations and told them to stop broadcasting, Ptak said."I told them I believed we had a bureaucratic conflict and that I understood that they were advancing a legal principle that we should stop broadcasting until a judge told us we could operate," Ptak said. "We were going to operate under the legal premise that we were innocent until proven guilty, and we were going to continue to broadcast until a judge told us to stop."Kind Radio has requested a permit with a waiver from the FCC's requirement that stations broadcast at 100 watts to get a license, Ptak said. Its next problem is that Capstar Broadcasting Partners, the broadcasting behemoth, recently acquired the rights to broadcast at 105.9 FM, the frequency at which Kind broadcasts. Capstar plans a 50,000-watt station based in Round Rock, which is about 48 miles away. The station would serve the Austin metro area and according to its license application the new station's signal would reach to the San Marcos city limits, Ptak said."One of the major things we're focusing on is we believe the value of political speech is of a higher order, and should receive more protection, than commercial speech," Ptak said.Of the two stations officially licensed to San Marcos, a city of 30,000 population, he noted the FM station actually broadcasts oldies music to the Austin market, while the AM station rebroadcasts Spanish-language religious broadcasts from the Rio Grande Valley. Kind offers community news and information, such as interviews not only with local and county officials but also with candidates from both major parties for state attorney general, a race which was virtually ignored by licensed broadcasters before the March 10 primary election.Ptak said the programs reflect a broad spectrum of political participation. "It's all individuals; there's no group affiliation or political agendas. These are all just citizens representing their own ideas or interests or talents. Our only restrictions are: no commercials, no pornography and no slander." He added, "We established those after people pushed the limits."Robert W. McChesney, a critic of the corporate media's effect on democracy, and associate professor of journalism at the University of Wisconsin, said the radio industry has seen a "total shakedown, with a handful of huge chains dominating radio, since the Telecom Act."Radio is perhaps the least expensive mass media to produce, and is best suited to cover local community issues, but McChesney, author of Corporate Media and the Threat to Democracy [Seven Stories Press, 1997], noted, "it has become the most concentrated and formulaic medium in the country. It's a tremendous irony, or even tragedy, and it makes the need for low-power broadcasting even more striking."He does not advocate an unlicensed radio free-for-all, which distances him from some of the anarchist/libertarians in pirate radio. "If we got rid of all licensing, the only thing for sure what happen is the big companies would blow everyone else out of the water, so I'm not an anarchist in that sense."Good broadcasting also takes resources, McChesney said, and if American people want a media system that is dedicated to democracy and not to fattening the wallets of investment bankers, it should demand establishment of a real public broadcasting service that does not rely on politicians and corporations for funding. "I think there's a lot of popular support for that. The problem is organizing, but I don't think that is because people don't want it. I think it doesn't exist for a lot of other reasons, not the least of which is the power of the commercial broadcasting lobbies." He also would provide for more community radio and public access TV and restrictions on advertising during news and kids' shows.The good news is that the FCC and the NAB appear to be rethinking their strategy and allowing the possibility of legitimizing microbroadcasting in some form. "They think it might be counterproductive to turn these people into martyrs," McChesney said. "I do know the FCC is talking about establishing low-power stations. They're talking about 1-watt stations, which is a joke, but the principle as I understand it is here to stay. I think 50 or 100 watts is the way to go."Ultimately, a reallocation of the airwaves may be needed. "Is it politically possible in the United States in 1998? No," McChesney said. "Is it something we have to do if we're serious about having a democracy? No question about it. The fact that it's impossible doesn't stop you. It means you just try to change the political culture until it becomes possible."One thing I know: I find very few people who think this is great, 'we love what's going on.' They say this is a total ripoff -- it's outrageous. Even political conservatives think it's a total ripoff. The problem is communicating that and making it an issue, because it's an issue that's resolutely avoided in the commercial media, which is where people normally get their news."Sidebar OneHow to Democratize RadioThe airwaves are a public trust and the general public should have a say in how they are run. Write the Federal Communications Commission (see address below) and ask commissioners to:* Halt all FCC assaults on microbroadcasters until final outcome of the Free Radio Berkeley case is known.* Call for microbroadcasting demonstration zones in your area to help develop rules for low power broadcasting.* Re-establish the Fairness Doctrine to provide for alternative views on all licensed broadcasting stations.* Restore the licensing of community radio stations broadcasting at 100 watts or lower on available frequencies.* Allow public access to a portion of the bandwidth given to digital television broadcasters.* Encourage the FCC and Congress to reserve a significant portion of the analog television spectrum (which has to be returned to the government by current broadcasters once the digital transition is completed in the next decade or so) for low-power radio and television services. (The audio spread for channels 2-6 is just below the FM band.) While this is a long-term proposition it may represent one of the most exciting opportunities for increasing the diversity of broadcasting voices and programming at a very low cost.Ask Congress to:* Limit corporations to no more than one AM and one FM station in each metropolitan area, require each station to provide local news and public affairs programming and provide for community oversight over stations owned by out-of-town corporations.* Finance noncommercial public broadcasting with a tax on commercial broadcast advertising. The late Fred Friendly, the broadcast news pioneer who helped create the Corporation for Public Broadcasting after being run off from CBS, proposed such a tax to relieve chronic revenue problems. A broadcast tax of 2 percent would raise nearly $1 billion from an industry that otherwise pays nothing for the right to profit off public airwaves. Not only would the tax pay for public radio and TV, eliminating the need for pesky pledge drives; it also could pay for public funding of state and federal politican campaigns (see Editorial, page 2). If we raised the tax to 10 percent we also could pay for other domestic programs and/or provide for middle-class tax relief.* Develop the Internet as an unregulated broadcast medium. You can get political advocacy groups and labor unions interested in media democracy issues. It might not be the most important issue for most groups, but, as media critic Robert W. McChesney says, it is one of the issues we must deal with if we are to have a democratic society. For more information, contact:Federal Communications Commission, 1919 M Street N.W., Washington DC 20554; William Kennard, Chairman, email wkennard@fcc.gov. Also Commissioners Susan Ness, email sness@fcc.gov; Harold Furchtgott-Roth, email hfurchtg@fcc.gov; Michael Powell, email mpowell@fcc.gov; Gloria Tristani, email gtristan@fcc.gov. For general information, phone toll-free 1-888-225-5322); web: http://www.fcc.gov .Address your members of Congress c/o Senate, Washington, D.C., 20510 or House of Representatives, Washington, D.C. 20515. Phone 202-224-3121, 1-800-522-6721 or 1-800-504-0031. Email addresses are available at http://congress.org/elecmail.htmlStephen Dunifer, Free Radio Berkeley, phone 415-644-3779; email: frbspd@crl.com; web: www.freeradio.org . His new book, Seizing the Airwaves, written with Ron Sakolsky, recently was published by the AK Press (call toll-free 888-4AK-PRES for information). Among other things, the book is a primer for budding microbroadcasters.Joe Ptak, Kind Radio, c/o Media Design, 216 N. Guadalupe St., San Marcos, TX 78666; phone 512-754-0274; email chris@mediadesign.net; web: www.mediadesign.net . Radio Mutiny, 4116 Chester Ave. Box 238, Philadelphia, PA 19104; phone 215-382-4992; email wppr@svaha.com.Peter Franck, Counsel for the National Lawyers Guild, phone 415-415-995-5055; email pfranck@hbmvr.com; web: www.368Hayes.com/nlg.cdc.htmlLouis Hiken, Counsel for Stephen Dunifer, phone 415-575-3220' email: hiken@igc.org: web www.368Hayes.comFairness and Accuracy in Reporting (FAIR), 130 W. 25th St., NYC, 10001; phone 212-633-6700; email fair@fair.org; web: www.fair.org/fair/Americans for Radio Diversity web site: http://www.radiodiversity.com . For more pirate radio web sites, see http://www.eden.com/reporter/links

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