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Regulation and Emerging Micro Media: FCC Enforcement Difficulties with Micro Radio
Ted M. Coopman
Paper presented at the 1996 annual meeting of the Speech Communication Association.
Regulation and Emerging Micro Media: FCC Enforcement Difficulties
with Micro Radio
Nowhere is the FCC's inability to enforce even the most basic telecommunication regulation more evident than in the case of micro broadcasting. The purpose of this study is to examine FCC regulatory and enforcement strategies concerning emerging micro communication technologies using micro radio as an example. The proliferation of micro radio stations has increased markedly in the past two years. Current information indicates the existence of 23 confirmed stations in operation, with some estimates placing the number as high as 400 nation-wide (Schreiner, 1996). In fact, micro radio has expanded internationally with a multitude of stations in operation in such places as El Salvador, the Philippines, and the Chiapas region of Mexico (National Lawyers Guild, 1995; Schreiner, 1996). Micro radio stations are low-wattage FM radio stations that are community based, activist oriented, and egalitarian in their organizational structure. Because micro radio is fundamentally different from traditional licensed and unlicensed broadcasting, normal FCC enforcement procedures have proven ineffective to date.
The first section of this paper provides a history and overview of unlicensed broadcasting and the FCC's responses to such activity in the United States. In the second section I discuss the current status of micro broadcasting. Third, I explain my data gathering strategies and procedures. Fourth, I report my findings, focusing on FCC enforcement difficulties concerning micro broadcasting. Last, I present the implications of my study in light of emerging micro telecommunication technologies.
Unlicensed Broadcasting and the FCC: A Brief OverviewThe primary document regulating the airwaves is the Communications Act of 1934. A review of the literature reveals that the most common citation given for any action against an illegal broadcast is Section 301 of the Communications Act which details the ultimate right of the federal government "to maintain the control of the U.S. over all channels of interstate and foreign radio transmission" (p. 1,081). As McChesney (1993) explains, the Communications Act of 1934 flowed from the Radio Act of 1927. The Communications Act of 1934 is constantly under revision as Congress passes new laws and new communications technologies are developed, as illustrated by the recent passing of the 1996 Telecommunications Bill. Congress also granted the FCC power to alter the Act's regulatory structure (Franklin & Anderson, 1990).
It was just before the Radio Act of 1927 that pirate radio was first discussed by broadcasting historians. All earlier legislation was unable to deal with the incredible proliferation of broadcasters and receivers flooding the United States in the middle to late 1920s. After the courts determined that regulations established in the early 1920s were unenforceable, broadcasting entered what was called the "break down of the law" period (Barnouw, 1966). In the first six months of 1927, the number of stations in the United States increased by 200, and the total wattage almost doubled. During this chaotic period, the first instances of "wave piracy" occurred. Because of the technology in use at the time, certain frequencies were superior to others. During this time, stations would invade a frequency that they considered superior without regard as to who happened to be using it at that moment. This led to electromagnetic mayhem and made much of the spectrum static and gibberish (Barnouw, 1966).
The Federal Radio Commission (FRC), which was established as part of the Radio Act of 1927, immediately set about clearing up the airwaves. A technical-solution model was used: Those stations with superior equipment and power were given the best frequencies. This meant that commercial stations, especially chain or network broadcasting stations, came to dominate radio. At that time, a station's possession of a frequency could be challenged at a license renewal hearing every three months. This led to a variation of piracy, with the powerful stations preying on the weaker stations by constantly challenging them for their licenses (McChesney, 1993). These constant challenges depleted the weaker stations' resources and left many of them unable to adequately defend themselves. Most often these were the vulnerable educational broadcasters, who could not afford the legal assistance or the technology to upgrade their systems to compete for their channels (McChesney, 1993).
McChesney (1993) notes that the Radio Act of 1927 was strengthened and confirmed by the Communications Act of 1934. At that time the FRC was replaced by the Federal Communications Commission (FCC). From 1934 to the onset of World War II, the only recorded instances of radio piracy consisted of stations that either had not bothered to apply for a license, or those that considered themselves too small or too part-time to need a license (Jones, 1988). Often there was the belief that if a station's signal did not cross state lines it was not subject to federal regulation. Stations in violation of the law were easy for the FCC to locate because most of them operated in the open and freely announced their locations over the air. By 1937, unlicensed broadcasting had virtually disappeared from the spectrum. With the coming of the war, the subsequent loss of individuals to the war effort, equipment scarcity, and war-time restrictions, unlicensed broadcasting activities in the United States for the most part ceased to exist (Yoder, 1990).
After the Second World War, the nature of unlicensed broadcasting appeared to change. With the occasional exception of someone broadcasting in ignorance of the law (as illustrated by Steve Jones ), most of the activity switched to short-wave frequencies. Generally, radio hobbyists are the sole audience for these pirates. Many short-wave pirates went on to broadcast on the normal band.
The FCC does not take into consideration mode or potential audience when enforcing communications law. As indicated by FCC news releases (1990a-e), these pirates were considered more dangerous because the short-wave part of the spectrum was used for international communications, navigation systems, military traffic, and a host of other operations. Short-wave pirates dominated unlicensed broadcasting up until the 1980s. The presence of normal band pirate broadcasters began to be felt in the late 1960s and early 1970s as a result of the political turmoil of the times (Yoder, 1990).
Legal and Constitutional Considerations
The basis for the control and regulation of the broadcast spectrum is the Communications Act of 1934; specifically Section 301(a-f). This act encompasses broadcasting under language from the Radio Act of 1927, which in turn, is taken from public utility regulation (Franklin & Anderson, 1990). Thus, broadcasters are to operate "in the public interest, convenience and necessity" (Communications Act of 1934, 47 U.S.C.A. 303). The need for the Communications Act stemmed from the technical limitations of the medium. Spitzer (1989) discusses what he considers to be the primary points for the regulatory rationale of the Communications Act of 1934. Spitzer's article focuses on treating broadcasting differently from other Constitutionally-protected media such as print. Essentially, government justifications for broadcast licensing focuses on economic and psychological differences between print and broadcast media. Specifically, these differences are limited spectrum space, industry structure, accessibility, and the perceived superiority of print over electronic communication. An additional justification is the "government property" rationale (Spitzer, 1989, p. 991), the claim that the government (which keeps the spectrum in "trust" for the public) has the jurisdiction to regulate the spectrum as it sees fit.
Especially important to the issue of government control is the spectrum scarcity rationale. As noted previously, a lack of space on the broadcast band was a major factor in the content of both the Radio Act of 1927 and the Communications Act of 1934. "Scarcity rationales have provided the basis for much of the Supreme Court's jurisprudence in the area of broadcast regulation" (Spitzer, 1989, p. 1,007). In National Broadcasting Company v. U.S. (319 US 190, 227, 1943), it was noted that "owning to its physical characteristics, radio, unlike other methods of conveying information, must be regulated and rationed by the government" (Spitzer, 1989, pp. 1,0071,008). In Red Lion Broadcasting v. FCC (395 US 367, 388, 1969), 26 years later, the court unanimously defended the scarcity rationale despite arguments that new technology allowed for more efficient use of the spectrum. The court reasoned that demand had increased as well, still allowing for the scarcity rationale. However, in Metro Broadcasting Inc. v. FCC (497 U.S. 547, 1990) and the following Syracuse Peace Council v. FCC (110 ScT 717, 1990; a.k.a. Merideth Corporation v. FCC, 809 F. 2d 863 and 867 F. 2d 654, 1989) certiorari denied, the FCC downplayed the scarcity rationale, seeming to question the constitutionality of much of the broadcast regulation, especially in the differentiation between traditional print and broadcast media.1 Spitzer (1989) concludes that, in terms of the government property rationale, the government cannot simply regulate as it sees fit. Thus, Spitzer (1989) argues, "If the government property is a public forum, any regulation of speech is subjected to intense scrutiny" (p. 1,030).
Both Bender (1988) and Spitzer (1989) point to the need for a drastic overhaul of United States communications law. Although the Telecommunications Bill of 1996 is a drastic overhaul of United States communications law, its practical application to the problems discussed here has yet to be seen. The following section discusses the laws in place previous to this new legislation as they are related to FCC regulation and enforcement of unlicensed broadcasting.
FCC Regulation and Enforcement
Why the FCC abandons cases once permanent injunctions are established is unclear. Those pirates involved believe that once a pirate is taken off the air and the territorial imperative of the FCC has been validated, the FCC does not wish to test the actions in court (Ladd, 1987; Phipps, 1990). In fact, permanent injunctions have served the FCC well. Once the injunction is in place, any further violation puts the broadcaster in contempt of court (Bender, 1988; Boyd, 1983).
Despite the increasing challenges to FCC authority, the agency has been moving towards obtaining more enforcement powers. A Federal Registry Order by the FCC (47 U.S.C. 115) dated November 11, 1993, states that the FCC has given itself subpoena power in the case of violations of Section 301 of the Communications Act of 1934 concerning "the production of books, papers, correspondence, memoranda, and other records" (p .1).
When the FCC levies fines, it issues a "Notice of Apparent Liability" to those it believes to have engaged in illegal broadcasting. Interestingly, for the FCC to issue a fine, it does not need to have more than basic technical evidence of an infraction, in the form of radio detection finding (FCC, 1992d; correspondence by Andrew Yoder to FCC, 1992). The person accused has to state why he or she should not be fined; a simple denial is not enough. Further, because it is a civil action, the government is not required to appoint counsel to those accused if they cannot defend themselves (National Lawyers Guild, 1992).
Current Status of Micro Broadcasting
Based on information from the Committee for Democratic Communication (National Lawyers Guild, 1992) and Shields and Ogles (1992), the modern micro broadcasting movement began on November 25, 1986 in a public housing development in Springfield, IL. The one-watt station broadcast openly on 107.1 FM as Black Liberation Radio and was put on the air for about $600. The operator, Mbanna Kantako, a legally blind African-American in his mid-thirties, started the station because he felt that the African-American community in Springfield was not being served by the local media. Kantako felt that because the African-American community has a high illiteracy rate, radio would be the best way to reach this community. He states: "'Given technology today, using print is like using the pony express instead of air freight'" (Shields & Ogles, 1992, p. 6). His station reaches about 1,000 residents in his housing project and has a total range of approximately a mile and a half. Despite police harassment, a raid by the FCC, and a $750 fine, the station is still on the air (Shields & Ogles, 1992). Coining the term micro broadcasting, Kantako considers it his mission to bring his community together and to empower them (National Lawyers Guild, 1992). With no apparent assets to seize, the FCC has not pursued this case, although the fine is still outstanding. Kantako walked out of the hearing when the FCC refused to provide legal representation.
The CDC, part of the National Lawyers Guild, took up Kantako's case and pursued the FCC in the courts on several grounds concerning United States communications policies. This challenge became increasingly important as the micro broadcasting movement spread across the country. Kantako and Mike Townsend, a social work professor at Sangamond State University in Springfield, IL, put together a videotape describing how to construct a micro station, which they distributed widely (Shields & Ogles, 1992). Several other micro broadcasters followed Kantako and Townsend's lead, including Stephen Dunifer in Berkeley, CA and Walter Dunn, Jr., the "Black Rose," in Fresno, CA. Both Dunifer (McHenry, 1995) and Dunn (Graham, 1990) produced videotapes and other materials concerning micro radio station construction and operation. While Dunn had a much more powerful transmitter, 125 watts, like Kantako, Dunn started small (Milner, 1993).
The common goal of these micro broadcasters is to flood the United States with micro radio stations, overloading the FCC's capacity to regulate such stations and forcing a decision on micro broadcaster's right to operate (Dunifer, 1994). A similar instance occurred with the introduction and mass distribution of citizen band or CB radios. When CB radios first entered the market in the early 1970s, the FCC sought to license each unit sold. So many units were sold, and so few people took the time to apply for a license, that the FCC eventually gave up on the licensing idea all together (National Lawyers Guild, 1992).
As summarized by the CDC report: "Micro radio practitioners and members of their communities un-served by the present commercially based broadcast system have standing to challenge the FCC policy" (National Lawyers Guild, p. 116). The CDC supported this statement by citing Red Lion Broadcasting v. FCC (395 US 367, 390, 1969), in which the court confirmed that the rights of the listeners, not those of the speakers, are paramount. Also noted was the contention that, according to Red Lion, the First Amendment does not differentiate between those with licenses and those without.
Stephen Dunifer, a long-time activist in Berkeley, CA, is the primary organizer behind Free Radio Berkeley (FRB). This station's programming consists of music and political commentary (Ewell, 1995). As reported in the press (Dinkelspiel, 1993; Milner, 1993), Dunifer has been broadcasting in the evening on 88.1 FM since the early 1990s. Dunifer's background in electronics led him to research broadcasting technology and work out designs for micro transmitters. His operation is 10 watts, and was broadcast out-of-doors or from his 1964 Volvo station wagon. FRB now has a stationary studio space. Although he has never been caught in the act of unlicensed broadcasting, the FCC has fined him twice for a total of $20,000 (Dunifer, 1994).
The April 22, 1994 front page of the San Jose Mercury News "Eye" featured another micro broadcaster, Richard Edmonson. Broadcasting at 93.7 FM Wednesdays and Saturdays from 8 p.m. to 10 p.m., San Francisco Liberation Radio (SFLR) programming consisted of music and political commentary (Fine, 1994). Edmonson, like Dunifer, usually broadcasts from his vehicle, in this case a Volkswagen van. SFLR received a Notice of Apparent Liability in 1993 for $10,000 from the FCC. Despite these legal troubles Edmonson has continued to broadcast (Fine, 1994).
Both Dunifer and Edmonson are being represented by the CDC in San Francisco. According to Edmonson, there are over 200 micro broadcasters operating in the United States (Fine, 1994). Kate Henton, FCC public relations officer in San Francisco, stated, "'We have very good reasons for requiring a license. . . . It's very common for these so called pirate broadcasters to use equipment that is frequency-unstable . . . that can potentially be very dangerous"' (Fine, 1994, p. 38). Usually the FCC has the right to inspect any station at any time to ensure that its equipment is functioning properly (FCC, 1992a). But, because broadcasting licenses are issued only to stations of 100 watts or more (69 FCC 2d 240) and micro broadcasters are well below that, the opportunity for inspection does not presently exist.
Summary and Research Questions
RQ1: How has the FCC responded to the micro broadcasting movement?
RQ2: How effective are the FCC's strategies for regulating micro broadcasting?
Document Selection and Analysis
The FCC's data organization methods required a broad approach to document collection. Documents gathered and analyzed covered four primary areas: Information concerning the interdiction of unlicensed broadcasters; press reports and other outside documentation collected by the FCC; budgetary, staffing and resource distribution data contained in FCC annual reports; and legal documents.
The Committee for Democratic Communication (CDC) was the second source of documents for this study. These documents consisted almost exclusively of legal briefs associated with the Dunifer case. Other documents obtained were of secondary source material collected and compiled by the CDC.
Observation Procedures and Criteria
I recorded my observations at four primary events: the hearing for a request for a preliminary injunction by the FCC against Stephen Dunifer of Free Radio Berkeley on January 20, 1995, with arguments heard by Judge Claudia Wilken; a rally for the defendant which took place outside the Federal District Courthouse in Oakland, CA prior to that hearing; a station meeting of Free Radio Santa Cruz staff members in April 1995; and a National Lawyers Guild Forum on micro radio on September 22, 1995 in Berkeley, CA. In addition, I recorded field notes for all interviews conducted.
I constructed interview schedules prior to all interviews. Primarily, I designed questions to collect basic information concerning actual events, policies, procedures, and time-lines. For example, I asked the three FCC officials: "How does the FCC decide what unlicensed broadcasters to shut down?" and "Does the FCC have any plans to significantly alter the Communications Act of 1934 in terms of section 301?". The micro broadcasters interviewed were asked questions which focused on organizational structure, station operation, and encounters with the FCC, as with: "How do you think the FCC will handle the regulation of micro broadcasting?" and "How would someone go about getting started in micro radio?". I recorded field notes after each interview concerning my reactions, the physical interview environment, and interviewees' nonverbal cues.
I analyzed the printout and all other FCC data concerning the frequency and band locations of unlicensed broadcasting. This analysis revealed that the data were insufficient to discover any trends or patterns in the interdiction of unlicensed broadcasters. The primary problem was that FCC field offices do not keep or report unlicensed broadcaster violations in a consistent manner. Some offices issue news releases as a deterrent. Other offices do not, reasoning that the publicity will encourage others to try unlicensed broadcasting. Certain field offices report all violations of Section 301 simply as violations of Section 301; others detail specific sections violated, and still others add comments concerning the violation. Further, there is no central clearinghouse for any information concerning this subject. This made any analysis problematic because the information is incomplete to an unknown degree. Moreover, many incidents of 301 violations cannot be confirmed as unlicensed broadcasters, only as probable occurrences. At this point, I ended this line of investigation. The only valuable information I discovered is that the FCC, because of inconsistent recording and filing systems concerning violations, would not be able to detect any increase over time in unlicensed broadcasting activity until it became so large as to be unmistakable.
My analysis focused on the difficulties involved with FCC interdiction of micro radio. Once all the interviews were transcribed I highlighted relevant and took notes on specific and general subject matter. I compared interviewee references to factual data or events with FCC and CDC documentation as well as news stories and other data sources. I conducted research on FCC precedent cases, the First Amendment and limited analysis of its philosophical roots as a way to position this study within regulatory and Constitutional contexts. My analysis focused on superimposing past FCC procedures dealing with commercial or corporate violators, high-profile individuals, and traditional unlicensed broadcasters (pirates) on micro radio practitioners' activities.
The FCC Encounters the Micro Broadcasting Movement
U.S. v. Dunifer: An Overview
Dunifer and a coalition of like-minded activists believe that the concentration of media in the hands of a few corporations is a direct threat to the lives of people everywhere, especially the poor and homeless. Their answer to this is the creation of micro media operated by, and for, the public as a means to facilitate discourse without commercial or public broadcasting's institutional filters. The method of the "Free Communications Coalition" is to challenge the Federal Communications Commission's ban on low-power radio broadcasting through electronic civil disobedience.
The Committee for Democratic Communication (CDC) had previously prepared briefs for Kantako's Black Liberation Radio, and became interested in Dunifer and Free Radio Berkeley as a test case challenging federal broadcast regulation. After conferring with each other, Dunifer set about arranging a situation in which the FCC would cite him for unlicensed broadcasting. This occurred in May 1993, with Dunifer eventually receiving a Notice of Apparent Liability. This started an exchange of letters and pleadings between the CDC, Dunifer's legal counsel, and the FCC. In December 1994, the FCC filed for a preliminary injunction to enjoin Dunifer's broadcasts, a strategy consistent with the FCC's prior operating procedure which are discussed in detail later in this paper. However, in a surprising decision in January 1995, Judge Claudia Wilken denied the FCC's request, citing constitutional concerns about the current broadcast licensing structure. She requested more information from the FCC concerning these constitutional issues, putting the case on hold until the FCC presented its response.
During the interim, Dunifer called for people to "seize the space" and start more micro radio stations while the FCC was reorganizing its case. The number of these stations increased markedly and spread across Northern California.
The FCC responded to Wilken's request in August 1995 by issuing a Memorandum and Opinion Order (FCC 95-333) refuting Dunifer's claims and reasserting the FCC's right to regulate broadcasting in the manner of the agency's choosing. This was not sufficient to compel Wilken to enjoin Dunifer and the case is now involved in arguments over jurisdiction. The next hearing is scheduled for March 1996.
FCC Enforcement Difficulties
The position taken by the FCC in the Memorandum Opinion and Order dated August 2, 1995 (FCC, 1995b), one of no compromise concerning the technology and use of micro radio, ignored the enforcement difficulties involved with the expansion of the micro broadcasting movement. The first hurdle the FCC must overcome is one of limited resources. According to the FCC's Annual Report for 1993, the last year available, FCC employee units total only 451 for its field offices and 1,292 for its Washington, DC offices, for a total of 1,743. The total budget for 1993 was $140,000,000, much of which was earmarked for specific projects, such as the $11,500,000 to implement the Cable Television Consumer Protection and Competition Act of 1992. According to FCC spokesperson Maureen Peratino, the budget for 1995 was $185,000,000, and the agency asked for $223,000,000 for 1996. Even if Congress approves that number, $25,000,000 of that is earmarked for the FCC's office relocation. Peratino went on to say the FCC had not yet projected costs to implement the Telecommunications Bill of 1996 (Antonucci, 1996). These fiscal allocations are distributed over a number of bureaus, of which the Compliance and Information Bureau (CIB) is only one. In his interview, Clance stated that actual funding levels for the CIB are unavailable. The number of employees for CIB was listed at 374 for 1993 (FCC, 1993b).
Funding and personnel are spread over 35 field offices with 307 employees, and the main offices in Washington, DC, which has 67 employees. California has the largest number of field offices with four. Additional field offices are located in 23 other states and Puerto Rico. Although the FCC has listening sites around the country, these sites can only give the appropriate field offices a general area to search. Locations of unlicensed broadcasters are often discovered through investigations of complaints and the monitoring of the press. The primary mode of tracking these broadcasters is with radio detection finding (RDF) vehicles. Daniel Emrick, an engineer with the FCC, stated the FCC has approximately 75 such vehicles in operation spread out over the different field offices and the research facility that the FCC operates in Powder Springs, GA. Some offices have only one vehicle, while other offices have upwards to three. These vehicles are all custom fit with RDF equipment at the Powder Springs facility, at a combined cost of vehicle and electronics equipment approaching $80,000 each, not including labor.
The FCC must monitor and regulate 6,900 conventional FM stations (FCC, 1995b) in addition to all AM stations, transmission towers, television, cable service, and a host of other electronics technology and manufacturing. Nearly all these regulatory and enforcement functions are handled by the field offices (FCC, 1993b). Thus, the agency is spread fairly thinly. The prospect of attempting to track down over 400 unlicensed broadcasters, and process them through the NAL and forfeiture procedure, seems problematic.
The portability of a micro station, which easily fits in a large backpack, including power source, further adds to the tracking difficulties. Even if the number of unlicensed stations were exaggerated, half that projected number would be difficult to interdict. Moreover, although he did not provide specific numbers, Dunifer stated that the number of kits ordered each year from FRB has been increasing steadily. Combined with the ability of others to construct such units, the end result is an ever-increasing, difficult-to-track, number of transmitters.
Adding to the FCC's difficulty in locating such stations and the processing of Notices of Apparent Liability (NAL) and Notices of Forfeiture (NOF), is taking action against broadcasters who refuse to pay fines or stop broadcasting. Even in the current climate where Kantako has refused to pay his fine or stop broadcasting since 1989 with no further FCC action, enforcement has been difficult. When violators will not acknowledge Notices of Apparent Liability (NAL) and Notices of Forfeiture, the FCC must go to the local U.S. Attorney to obtain assistance in prosecution, search warrants, and equipment seizure orders. According to Clance, an armed officer, typically a Federal Marshal, and infrequently a local police officer, must serve a search warrant. FCC field agents do not carried firearms. Both Clance and Emrick stated that any move to arm FCC agents would be strenuously opposed internally. FCC agents only carried firearms during World War II, when the agents played a counter-espionage role. Clance further stated that obtaining cooperation from some U.S. Attorneys, who regularly deal with drug trafficking and organized crime cases, ranges from difficult to impossible. He noted the problems associated with convincing a U.S. Attorney that someone operating a 10-watt radio station without a license deserves the attorney's time and energy. It is easy to see how local police would not go out of their way for the same reasons, especially since it would be a federal action outside their jurisdiction.
Court action involving a micro broadcasting station presents further difficulties. In the past, pirate radio stations usually consisted of one to several people, or were managed or coordinated by an individual. As with commercial stations, the pirate operations tended to be hierarchical in nature. All the micro broadcasting organizations in the San Francisco Bay Area monitored for this study are not structured hierarchically. It might seem to the casual observer that Dunifer and Free Radio Berkeley are one and the same entity. However, Ewell's (1995) article on Free Radio Berkeley and Dunifer's statements indicate that this is not the case. As Dunifer stated, he just elected to take the heat to bring the case into court. These stations are primarily coalitions with several key people, and no one clearly in authority. This is true of FRB by Dunifer's admission, and is also true of Free Radio Santa Cruz. FRSC is very adamant in its rejection of traditional hierarchy (Davidson, 1995). The influence of Food Not Bombs, the IWW (International Workers of the World), and the Green Party in many of these stations serves to reinforce this tendency. With no leader, it will been difficult for the FCC to find an individual to prosecute. Further, the FCC has to convince a judge that the individual identified is the responsible party (Kuipers, 1989). This would probably be the unfortunate person who happens to be on the air when the authorities shows up, as in the RNI case (Kuipers, 1989), or perhaps the individual(s) who rents the space where the transmitter was located. Issuing a preliminary injunction against an individual to stop broadcasting will only stop that individual, no one else. The FCC would have to get action taken against an entire staff to make such a legal remedy work in a non-hierarchical environment. Providing individuals could be proven to be responsible, the penalties for such individuals would produce even more difficulties.
Besides the possibility of going to jail for contempt of court in the case of a violation of a preliminary injunction, the only other penalties involved are monetary forfeiture and the seizure of equipment. As stated above, enjoining a few people may not be enough to stop others from broadcasting. The concept of a fine as a penalty is based on deterring a money-generating broadcast or manufacturing facility from breaking the rules. If individuals are primarily trying to make money, a fine could prove to be a deterrent. Even an individual with real property or assets could be dissuaded from acting in a manner that would cause her or him to be fined. However, an individual with no assets, either in cash or property, would not be deterred. According to FCC records (FCC, 1995a), fines were regularly reduced or eliminated when the person fined produces proof that she or he does not have the money to pay. A majority, if not all of those involved in the movement, are poor. As Schreiner of Free Radio Santa Cruz explained, this is a movement of the dispossessed and their supporters. These people have no property, investments, or savings. Many of them do not own cars or have bank accounts. With no money to lose, the prospect of a fine is meaningless. The FCC would have to move to incarceration as a remedy, and considering the backlog in the American court system at both the federal and state levels, such an option does not seem viable.
The seizure of equipment could be a major setback to a small poor radio station, but the replacement cost for such equipment is relatively minimal and getting less expensive all the time. A group of people could easily contribute $10 each, or hold a benefit to pay for the replacement of such equipment. To raise $500 would not be a substantial amount of money for a group of dedicated activists and their supporters. Since many of the people involved are veterans of grassroots social activism, they are well schooled in fund-raising methods.
Finally, the FCC has underestimated the micro broadcasting movement. As illustrated by the FCC response to Judge Wilken's request, the FCC dealt with the Dunifer case as just another individual who wanted to broadcast without a license. This can be seen from the citations and language used in the Memorandum and Opinion Order (FCC 95-333), as well as the FCC's emphasis on issues covered in past unlicensed broadcasting cases. Based on my inquiries, the only indication of FCC acknowledgment of a fundamental difference between micro broadcasters and traditional radio pirates comes from Emrick. He assigned the title "pirate" primarily to short-wave operators, while indicating that there is a "distinction" between micro broadcasters and other unlicensed FM broadcasters: "I generally try not to use the term [pirate]," when describing FM activity.
The Free Communications Coalition in conjunction with the Committee for Democratic Communication are two well- organized and experienced organizations. The Free Communications Coalition's strength is contained in its associations with other well-established activist organizations with which it shares members and a common cause, as well as a non-hierarchical system of organization. Schreiner stated that the movement welcomes all viewpoints, as long as they support the concepts of free speech and communication. Currently, most stations could be classified as "left wing" in their political orientation. However, this would be an oversimplification of staff composition. Most announcers appear apolitical, with ages ranging from 8 to 80. On March 2, 1995, the day after I interviewed Dunifer, he had meetings to set up radio shows for the Gray Panthers (a senior citizen activist group) and a group from Berkeley High School. Free Radio Santa Cruz has several shows where elementary school students have total control (Davidson, 1995). The decision of what goes on the air depends on what the announcer wants to do. All an individual has to do to get on the air is show up to be trained and arrive for his or her shifts. With such a broad base of support, these stations might be harder to undermine than the FCC realizes.
Implications and Conclusions
As indicated by the agency's response to the Telecommunications Bill of 1996, the FCC has neither the personnel nor the resources to adequately regulate communications in the United States. Considering that the FCC is designed to regulate commercial corporate media, the focus of this bill, the agency cannot be expected to handle emerging micro communications technologies in its present form and applying its current strategies.
Studying Micro Communication
The technology exists for these and other innovations that will allow ordinary people to produce as well as consume media, to own the means of media production, and communicate with others in their own language and on their own terms. This would be a distinct shift from the dominant mass communication paradigm that is dictated by traditional media sources, most of which are profit driven (Beniger, 1989). Because of the low cost, these new technologies could eliminate the restrictions that are endemic to profit-driven mass media. Even public broadcasting is restricted by the immense costs of maintaining large facilities and the need to please revenue-generating target audiences along with corporate sponsors and underwriters.
Micro radio's legal battle goes beyond the abstract concepts of electronic access by the average person. Those involved make it clear that they see the media as predominantly controlled by wealthy corporations and the privileged few, the "haves," who cooperate with the government to maintain the status-quo. This is a direct threat to the survival of civil rights, as well as the physical survival of the burgeoning underclass, the "have-nots" or the "dispossessed," as Schreiner described these people. In Schreiner's and many of the micro broadcasters' view, denying media access is one of several ways in which the rights of people whose only crime is being poor or not motivated by the drive to acquire property, cash, and power, are eliminated. This alienation of the have-nots is evident on the political right as well as the left. Media as community organizing tools are apolitical, and with all likelihood, will be embraced by many people of different ethnic and political persuasions who feel threatened by the public and private powers which control these resources.
This revolution of technological access is going to occur with or without official government approval. Those involved in the Bay Area micro broadcasting movement stated without reservation that their actions will continue, whether or not the FCC approves. The micro broadcasters are prepared for either eventuality. They have studied the opposition and know the FCC's limitations. If the FCC makes room for micro media and allows a reasonable and fair permit scheme, these outlets will be simple to regulate. Considering the difficulties in an intractable interdiction stance, accommodation seems to be the wiser course.
Micro broadcasting, and micro communication more generally, benefit those who govern as well as those governed. Media scholar Herbert Altschull (1990) argues, "since people are likely to believe bad things about their governors one way or the other, it is safer for the ruler to have those bad things put down in writing, because then they can come to his [or her] attention more easily" (p. 64). Thus, the FCC would benefit from observing this reason for the initial movement to provide a "free press," or in this case, a "free radio." Moreover, this notion of a free radio is concerned with owning the means of communication; then a printing press, now a transmitter, the Internet, or other emerging forms of communication technologies. In this case, free radio has nothing to do with content, but everything to do with free speech and the ability to communicate with others. Electronic discourse, held in a public forum without governmental interference, keeps dissent in the open and part of the governing process. To push those who dissent underground adds to an already-existing climate of alienation, and drives people away from any feeling of commonalty that they may have with the mainstream. Once there, that deviation, unmoderated by contact with the larger body of American culture, can fester and lead to conflict that can damage the all-too-frail fabric of our society. Keeping all viewpoints in the public forum, the "market place of ideas," supports evolution instead of revolution. In this case, if access is not given, then it will be taken.
1The Syracuse Peace Council v. FCC case was an appeal from a federal district
court case, Merideth Corporation v. FCC (809 F.2d 863 and 867 F.2d 654).
Previous researchers cited Syracuse Peace Council v. FCC rather than Merideth
Corporation v. FCC when discussing the issues involved in the case (e.g.,
National Lawyers Guild, 1992; Spitzer, 1989). To avoid confusion, the case
is referred to and cited as Syracuse Peace Council v. FCC (110 S. Ct. 717,
1990) in this thesis. The term certiorari denied, in relation to the Supreme
Court, simply means the court reviewed a case that was appealed to it from
a lower court and elected not to hear it. This, in effect, lets the decision
of the lower court stand.
Akizuki, Dennis. (1995). Ruling keeps pirate station on the air. San
Jose Mercury News, p. B5.
Unpublished Legal Brief
National Lawyers Guild: Committee on Democratic Communication. (1992). Brief on the constitutional and human right to broadcast without government interference. Mbanna Kantako, micro radio practitioners, the communities of the U.S. vs. the Federal Communications Commission (USA). San Francisco, CA.
Federal Communications Commission69 FCC 2d 240, 1978; FCC LEXIS 947 (FCC 78384)
FCC. (1989, November 20). Pirate FM broadcast station shut down and operator fined. Public Notice, 665.
FCC. (1990a, February 9). Unlicensed West Virginia broadcast station shut down. Public Notice, 1747.
FCC. (1990b, February 23). Another unlicensed Virginia broadcast station shut down. Public Notice, 1912.
FCC. (1990c, March 19). Unlicensed California pirate broadcast station shut down. Public Notice, 2264.
FCC. (1990d, April 13). Amateur radio operator fined $1000 for operating a pirate radio station. Public Notice, 2693.
FCC. (1990e, June 18). Pirate radio station shut down in Moreno Valley, California. Public Notice, 3666.
FCC. (1991a, June 13). Pirate radio station shut down in Venice, California. Public Notice, 13506.
FCC. (1991b, June 28). Pirate radio station shut down in Simi Valley, California. Public Notice, 13735.
FCC. (1991c, July 25). Ohio amateur radio operator fined for operating pirate broadcast station. Public Notice, 14113.
FCC. (1991d, September 27). Equipment seized from pirate radio network. Public Notice, 14957.
FCC. (1992a). How to apply for a broadcast station. General Information Bulletin. USA.
FCC. (1992b, April 28). Field operations bureau list of field offices. Internal document.
FCC. (1992c, May 4). Brooklyn, New York pirate radio station shut down, equipment seized by United States government. Public Notice, 22953.
FCC. (1992d, June 8). Pirate radio broadcasters fined in Pennsylvania. Public Notice 23448.
FCC. (1993a). 47 CFR 1993 edition.
FCC. (1993b). Annual report for fiscal year 1993. Washington, DC: U.S. Government Printing Office.
FCC. (1994, March 11). FCC issues $17,500 forfeiture to pirate broadcaster. Public Notice, 42145.
FCC. (1995a) Printout of NAL and NOF under review. FOB/NAL Data Base.
FCC. (1995b, August 2). Memorandum opinion and order. FCC 95-333.
Communications Act of 1934, 48 Stat. 1064
(1934), 47 United States C.A. @ 151 et. seq.
Communications Act of 1934, @ 311, 47 United
States C. 115 (1993).