The FCC and Pirate Radio
By Veronica Leary-Lodge
AUGUST 30, 1999: Sometimes life is confusing. Sometimes it's so confusing as to be idiotic. If you want an example of the latter, look at the evolving situation regarding the Federal Communications Commission and its stance toward pirate radio stations and microbroadcasters.
William E. Kennard, Chair of the FCC -- the same guy who helped push through the Telecommunications Act that allowed the consolidation of media power into the hands of a few, the same guy who oversaw the prosecution of radio "pirates" who were seeking to promote diverse views in the face of such consolidated media power -- is now proposing that the FCC consider issuing licenses for microbroadcasters, which would legalize the very conduct that the FCC has been prosecuting for 20 years.
Confused? How about this: Stephen Dunifer, world renowned radio pirate -- nemesis of the FCC, operator of Free Radio Berkeley (which was shut down by the FCC), the man who lost his constitutional lawsuit against the FCC, the man who challenged the regulations denying microbroadcast licenses to small stations like Free Radio Berkeley -- he is now opposing Kennard's proposal to allow microbroadcast licenses.
Politics may make strange bedfellows, but this is a veritable orgy of idiocy. And this orgy, like many others, began in the '70s.
A Little Micro HistoryLow power radio, also known as microbroadcast radio, was permitted by the FCC until 1978, when it was phased out through revised FCC regulations. Ironically, this phase-out was supported by many community and public-radio broadcasters because they were hoping to build their audiences and create nationwide networks. With the exception of National Public Radio, this plan has not worked out as microbroadcasters had hoped. For the past 20 years, the FCC has allowed only high-powered stations, and the licenses for such stations have become increasingly expensive, affordable only to millionaires or corporations. Thus, microbroadcasters -- now known as pirate radio stations -- who lack the money for a license and the audience for a nationwide network have operated illegally, seizing the airwaves and generally shunning all conventional broadcasting rules.
When the Telecommunications Act of 1996 was passed, large broadcasting companies were given permission to expand their holdings, and ownership of the country's radio frequencies was consolidated, ultimately ending up in even fewer hands. The FCC's own records show that the number of radio station owners dropped almost 12 percent in one year. Free Radio proponents say that this consolidation has resulted in a sharp deterioration of the diversity of views and the depth of information provided in radio broadcasting. Many believe that minority views do not get airtime, and that media corporations do not allow listeners access to information that is adverse to the corporate giants' interests. Kennard himself has said that the act he helped pass prompted "the most dramatic increase in consolidation in the broadcast industry in our history" and also threatened the FCC's supposed public-interest goals of "promoting competition and promoting diversity." Thus, most pirate radio operators claim that they provide the community with an opportunity to hear otherwise unpublicized or unpopular views. Why, then, would microbroadcasters oppose a proposal that would let them, and others like them, broadcast without fear of criminal prosecution?
More Space on the SpectrumThe proposed regulation would allow community broadcasting in three categories: 1 to 10 watts, 100 watts and 1000 watts. These stations would fill the gaps between the signals of the larger stations currently residing on the FM dial. To encourage diversity, Kennard further suggests that the regulations would limit the issuance of microbroadcast licenses only to new operators, and each new operator would be allowed only one station per regional market.
Dunifer has argued that legalizing, and consequently regulating, microbroadcast stations would be a bad idea because there aren't enough frequencies on the radio spectrum to satisfy the potential demand for licenses. "We're better off staying illegal," he said, arguing that the majority of stations will still be corporately owned. Dunifer fears that while microbroadcasters in lesser- populated areas may be able to get licenses, crowded urban areas like L.A. or New York will not have enough open space on the airwaves to satisfy potential demand for low-power licenses. Merely allowing legal broadcasting on the spaces that are left isn't good enough for Dunifer: "Unless some of the [radio] spectrum is given back to the public, the proposal is worthless to many people. Putting more and more [unlicensed] stations on the air is the only way to get something reasonable out of the FCC. And until that happens, we should resist flawed proposals like this one."
Dunifer isn't the only opponent of Kennard's proposal. The National Association of Broadcasters, the lobbying organization of media behemoths, also opposes the proposal. The NAB has argued that microbroadcast stations will interfere with existing radio signals, and is financing a study to "prove" it. However, it seems clear that the NAB's real concern is not with independent stations' interference with signals as much as with interference with the listener base. The NAB fears that listeners might choose to listen to the potential competitors and is trying to convince the FCC that the consolidation of media ownership has not actually resulted in a lack of diversity. An NAB spokesman has said, "When a company buys multiple stations in a market, they don't want them to compete against each other ... so they make sure each has a different format." In other words, the NAB thinks that because one station plays country music and another plays rock, diversity exists. The NAB has, notably, not addressed the concern that stations lack diversity with respect to political and social issues or with news dissemination. They also ignore the fact that all radio stations with any given format play the same songs over and over, and that the music source is almost exclusively big record labels rather than independent or local music. The NAB simply argues that there's "no proof that consolidation has undermined program diversity or hurt minorities."
The biggest issues, however, pertain to how "minority" is defined. Supporters of microbroadcast licenses argue that more "minority" views are needed on the air, but the FCC, as a government agency, is constitutionally barred from intentionally favoring minority broadcasters. Even if the FCC could pick and choose among applicants, it would be impossible to figure out exactly who the minority is. Would the determination be based strictly on race? Would an African-American Republican present "minority" views? Would it be based on format? Political slant? Religion? There are more underrepresented views than there are radio frequencies, and there is little guarantee that the racial/gender/political/religious characteristics of a station's owner (or shareholders in the case of a corporation) will govern the station's programming. Thus, the FCC remains plagued by the same questions that have existed since radio was created: How do they divide the limited radio spectrum among all citizens who want a voice?
Public Airwaves for the PeoplePerhaps the first mistake was putting the FCC in charge of the decision. Although the airwaves are supposed to be for the people, there are not many people who can afford to buy the license, buy the necessary equipment, and pay on-air personalities, programmers and engineers. Thus, a radio station would have to be either entirely volunteer, with donated equipment and talent, or it would have to make money somehow to finance the operations. "Somehow" has come to mean "by selling advertising." Radio stations make money by selling advertising time on air. The revenue pays for the license, the equipment and the employees. Such an operation requires a large initial investment of time, energy and money. So, when the FCC first issued radio licenses in the 1920s, they were awarded to companies like NBC and CBS, which had the resources to keep a radio station operating. As time went on, radio proved to be a very profitable medium. Communications companies gobbled up the available airspace -- primarily to make money -- but as a result, radio programming became controlled by those business-oriented companies and not by the public.
In retrospect, it's easy to see that the development of commercial radio has been contrary to the FCC's original goal of allocating the airwaves for the public interest. Large companies control the airwaves and the content. Their goal is to make money, not to educate, not to provide diverse views, not to act for the public benefit. Nevertheless, there are only three options with respect to radio operations: (1) commercial radio, (2) public radio, meaning that it is funded by taxpayers, and (3) volunteer radio, meaning that it is not funded by any source and is dependent entirely upon contributions of equipment and talent. If we reject commercial radio, we must be willing to accept the consequences of the other options. Do we, the taxpayers, want to pay for public radio when there is no guarantee of quality programming and when there will be great competition (and likely lawsuits) over the airspace available? Do we want the unreliability of volunteer radio? No option is ideal.
The system we have now leaves the FCC in a tough spot. It is charged with the duty of apportioning the airwaves among all broadcasters for the benefit of the public. It is supposed to promote diversity, but it cannot discriminate or intentionally allocate stations by race, political views or other distinguishing characteristics. Current FCC regulations require the FCC to auction off the spots, giving the licenses to the highest bidders. Obviously, such a system will result in radio stations being controlled by those who have the most money, usually mega- corporations who want to keep making money -- not exactly a surefire route to diversity and free speech. The auction system is constitutional because it does not discriminate by race, gender, religion, political affiliation, proposed radio format or other content-based factors. It discriminates only by wealth, which, although it probably doesn't seem fair to poor folks, is constitutionally acceptable.
Perhaps the solution now is to take the choice away from the FCC and give it back to the people, eliminating the auction system, but not necessarily choosing between commercial and nonprofit radio. The choice could be given to the people through voting. Anyone who wants a broadcast license would fill out a short application, identifying themselves and what they propose to program. The information would be included on our voter ballots every two or four years, and we, the people, would vote for the broadcasters we wanted in our communities. If corporate broadcasters were selected, they would still be allowed to sell ads and make money. If the public voted to finance public radio, so be it. Independent or volunteer radio could also be selected if the public wanted access to independent or local voices.
Now, of course, such a plan would have its own flaws. First, money would still be a factor. Rather than spending millions at an FCC auction, radio operators would spend millions in advertising to convince people to vote for them -- just like politicians. Second, the FCC would still exist, even if only as a regulator or administrator. Third, it still doesn't guarantee diversity.
Nevertheless, if the airwaves are supposed to be for the public, then control over those airwaves should be placed directly in the public's hands as much as possible. The public may make bad decisions and vote for bad broadcasters, but at least the decision would be in the public's hands, not the FCC's. The FCC has proven ineffective in both acting for the public interest and in creating diversity on the air. Giving the airwaves back to the citizenry by giving them the ability to choose their broadcasters would be a step in the right direction.
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