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11/16/98

The following is a report from scouts at the National Lawyer's Guild's Committee on Democratic Communications; they went to Washington recently to gauge support for a low power radio legalization effort.

I. Call To Action
II. INTRODUCTION
III. Monday, October 26
IV. Tuesday, October 27
V. Wednesday, October 28
VI. MY OVERALL COMMENTS AND CONCLUSIONS

Call To Action

We now have an historic opportunity (ok, its a cheap political phrase) to influence communications policy in the U.S. The window of opportunity is NOW!  Believe me-- I have talked with a number of people in D.C.-- we need to BOMBARD the FCC RIGHT NOW with a massive show of support. We need to show them that the unlicensed micros are serious about wanting a legalized system and we need to show that it has Congressional support.

The Committee on Democratic Communications (CDC) STRONGLY urges you to take action RIGHT NOW. Any actions that indicate massive support are worth doing. However, involving members of Congress is probably the most important and effective at this point.

We urge you to write a letter to you local Senators and Representative(s). Tell them that you are a local organization that either has, is currently, or would like to provide a local, community based, low power broadcast service. Current FCC rules prohibit such a service. There is currently a preliminary rulemaking (RM- 9208, 9242, 9246) that would make it possible for you to "legally" operate such a local radio station. Urge them to contact the FCC and express their strong support for LPFM. Ask them to meet with you so you can discuss the situation in more detail. Ask ALL of your supporters to send similar letters to you local Congressperson. If you have time, any support from other politicians (governors, mayors, state legislature, city council, etc. will also help).

1. It is IMPORTANT that you send copies of your letters to the Congress people to EACH FCC Commissioner individually. Snail mail is probably best, but e-mail is better than nothing.

Send to:
William Kennard
Susan Ness
Harold Furchtgott-Roth
Michael Powell
Gloria Tristani
Federal Communications Commission
1919 M Street, N.W.
Washington, D.C. 20554

2.  Anything else that you can do to call attention the issue is crucial. Letters to the editor, local articles, community meetings, rallies, etc. Send copies of newspaper stories, etc. to the FCC commissioners.

We need to BOMBARD with FCC with material indicating that this is a massive movement with significant support.

3. Spread the word:  Many microbroadcasters are not on the web. Try to contact everyone you know who is interested in this issue and urge them to take some action. Spread the word through every means possible.

4. Coalition building.  We need to consider building a strong and effective coalition to support microradio. (Back)

Report to CDC and MRN from Peter Franck on Washington, DC/New York Trip re Low Power Rulemaking:

I. INTRODUCTION
II. Monday, October 26
III. Tuesday, October 27
IV. Wednesday, October 28
V. MY OVERALL COMMENTS AND CONCLUSIONS

INTRODUCTION

The purpose of this trip was to start lobbying for support for non-commercial local micro-radio in Congress, at the FCC and with civic sector groups. The expenses (other than air fare to Washington) were covered by the fundraising we did for this purpose earlier this year.

It seems clear that the FCC is going to set up some kind of low power FM. Once they do, unless it is totally token (e.g. 1 Watt), it will be much more difficult to defend micro broadcasters in court, so it seems essential that we make sure we get the most we can out of the present process at the FCC. The situation is still somewhat fluid, and we have a chance to influence the outcome.

One thing came through load and clear: micro radio is a big, big, thorn in the side of the broadcasting industry. FM is scared of becoming the commercial wasteland that AM has become, and that will happen if it looses audience to Satellite Radio (and other new media). Direct Satellite audio broadcasting, 100 digital channels of it, is about to come on line as a viable and economical competitor. The wasteland/loss of audience scenario is much more likely if there are random (micro) electrons running around the FM band while the industry tries to go digital. We have leverage to insist that there is a fair allocation of spectrum space. In the process I think we have to develop a coalition with the 'civic sector' that can build public and congressional support, we need to come up with answers to some technical and administrative issues, and we need to continue to negotiate with the FCC and the industry.

If the Palestinians can negotiate with the Israelis, we can do no less. A little more on my conclusions below.

Let me lay out the meetings, and as much of their content and flavor as I can. Meetings were set up essentially in the order that people were available, but they did, somehow, fall into some logic. I intentionally left the National Association of Broadcasters (NAB) to last. (Back)

Monday, October 26

Eric Olson, Legislative Assistant to Congresswoman Anna Eshoo.
My general calling card for all of these meetings was to send in advance a copy of the paper we (the CDC ) prepared for the April 1998 NAB panel, Broadcasting, The Constitution and Democracy and our opening Comments in the preliminary rulemaking, RM 9208, Comment Of National Lawyers Guild Committee On Democratic Communications Filed On Behalf Of Itself And The Below Listed Micro-Broadcasters And Concerned Individuals And Organizations. As frequently happens in such meetings, Olson had only briefly reviewed the materials in advance. I summarized for him the micro-radio situation in the country and in the FCC and asked for a letter from Congresswoman Eshoo to the FCC generally supporting our position that there should be a new low-power non-commercial and locally based FM service. He was certainly sympathetic and agreed that if we sent him a draft of such a letter, he would present it to the Congresswoman. He seemed very receptive to the notion of local community-based media.

Dale Hatfield, Chief, Office of Engineering and Technology, FCC.
Shortly before I left the Bay Area, I was urged to meet with Dale Hatfield. I called Hatfield's office to arrange an appointment and was told that he had had a death in the family and was out of town but that they would e-mail him my request. As I had heard nothing back, I assumed that this meeting was not going to happen. But on leaving Eshoo's office, I received a message that Hatfield was available that day and would like to meet with me. Confirming the appointment, I went to the FCC offices.

I had been advised that it would be very important to find out whether the Office of Engineering and Technology (OET) was involved in the micro-radio proceedings at the FCC. OET is much more independent than some other branches, and a good result was more likely if they were involved. It was clear from the beginning of the meeting that OET was heavily involved in the micro-radio issue. Joining Hatfield in the meeting were his chief deputy, Bruce Franca, who seemed very friendly and quite knowledgeable, and Alan Stillwell, Economics Advisor. I introduced myself by handing out a description of CDC, summarizing briefly our history with micro-radio, starting with Mbanna Kentako in 1989, and our role in preparing and filing Comments in the Preliminary Rulemaking on behalf many micro-broadcasters.

Hatfield and his associates made it clear that while they were not unsympathetic to the idea of low power FM, they had a number of technical and policy concerns which, they implied, would have to be solved if they could recommend it. They indicated that low-power radio was on the Commission's December Agenda. They raised a number of questions which I will list and discuss very briefly:

They asked whether the micro-community would waive having sub-carriers on low power signals. Sub-carriers are channels, two for each FM frequency in the present band which can carry separate signals. They are a substantial source of income to commercial radio stations and to the Pacifica stations. They pointed out that if micro-radio did not need sub-carriers, it would take less spectrum space and thus be easier to fit into the present FM band. I promised to raise the question with the community.

They are very concerned to find a convincing engineering answer to the IBOC problem. This is their most central concern. For reasons that Ben Kobb made clear later (see below), and which the NAB attorneys stressed, the radio industry in this country is committed to the path of moving from analog to digital radio in the same spectrum and on the same frequencies on which they broadcast now (IBOC = In Band On Channel digital radio). They are seeking good engineering evidence that the transition to digital radio on the present spectrum can peacefully coexist with the addition of micro-radio.

Apparently, the way the FCC works is to rarely do their own technical research but rather to evaluate that presented to them by competing parties. They asked if new technology, i.e., new spectrum, and new gadgets to receive it would be an acceptable approach. Hatfield used the example of the $12 weather cube which one can buy at Radio Shack. He said it would be extremely easy to find another portion of the spectrum to put micro-radio on if such a technology was acceptable. I indicated that I was very doubtful that it would be acceptable because the whole point of micro-radio is to reach communities at all income levels and that to limit to those with the means and technical sophistication to go out and buy new equipment seemed not to be meeting that goal. I mentioned that Ben Kobb had suggested another new technology called spread spectrum as a possible solution. This would apparently allow for a small receiving chip, bought separately, to be attached, perhaps simply by velcro, to the existing radio to receive new frequencies. Hatfield is doubtful  that spread spectrum will work for radio.

Station size and power. They were very interested in the question of how large the stations we sought to have authorized should be. I pointed out that in our formal comments on behalf of much of the micro-radio community, we had initially proposed 50 watts urban, 100 watts rural, and that, in our Reply Comments, at the urging of some micro-broadcasters from large cities, we had proposed 100 watts overall. I did point out that the whole idea of micro-radio is to cover natural communities and that those are often not so geographically large. I gave the example of Prayze FM in Hartford, Connecticut: when that station first asked the FCC if there was an available frequency, the test applied by the Allocation Bureau was whether there was spectrum space for a 1,500 watt station (this came out in later litigation). In point of fact, all Prayze needs to cover the community of Hartford is the 80 watts it is presently using. We discussed, without any conclusion, whether there are ways of defining appropriate station size and power other than in simple watt terms.

They asked how the FCC could administer low power service, including licenses, where they should be issued, and how they could enforce the regulations against the many hundreds of stations which would emerge. It is quite clear that, with  limited staff and with limited budget, the Commission is concerned about any new service which would present a big administrative burden to it. I pointed out that we had proposed self-regulation through local and regional associations of micro-broadcasters and suggested that the FCC could give it a 12 month trial.

We discussed the question of whether any low power service should be commercial or non-commercial. I pointed out that if they limited non-commercial low power stations to the presently designated (for non commercial) lower portion of the FM spectrum a very small portion of the new low power service would be non-commercial. I also reminded them that it is CDCs belief that micro-radio should be entirely a non-commercial service. They indicated that without changing the division of the FM band for full power stations between commercial and non commercial the FCC has complete discretion to designate all or most of it for non-commercial low power stations.

Finally, they asked about the position of the present non commercial broadcasters on low power FM. They were, of course, aware that National Public Radio had filed comments against low power. I told them that I had a meeting scheduled for the next day with John Creigler, Pacifica Radios FCC counsel and that we hoped to get Pacficas support..

When I asked if the Office of Plans and Policy was involved in the proceedings, Dale Hatfield indicated that they were and that it would be a good idea for me to get in touch with the head of that office or his assistant.

Peter Mitchell, General Counsel, IUE (International Union of Electrical Workers), AFL-CIO.
The purpose of this meeting was to start to see if we can enlist the support of labor on behalf of micro-radio. Mitchell was interested and sympathetic. He immediately saw the potential that micro-radio has for unions, especially in organizing drives. He pointed out that it is often difficult for union organizers to get access to workers, since they are kept off factory premises until the very late stages of any organizing drives. He also thought it would be very interesting for unions to have micro-radio access to their members in an on-going way when living in fairly close proximity. Without making a commitment which he said would be up to the union president, he said he would see to it that the union considered sending a letter to the FCC and asked that we send him a proposed letter. He felt that other unions may be sympathetic, especially since the trade union movement is moving in the direction of downsizing to a much more of a grassroots community based approach to organizing, and suggested that we contact other unions, such as CWA (Communications Workers of America).

Amanda and Douglas Huron. Amanda and Doug were both very interested in hearing a report on the meetings so far. Amanda helped set up the microradio demonstrations earlier this month in Washington, D.C., and is interested in starting a micro-station in the area. Her father, Doug, a D.C. trial lawyer, seems to be available to help with any legal work which may result from the effort. They are involved with church and community organizations which could be quite supportive. Amanda will work on getting letters from community organizations in the D.C. area to the FCC supporting micro-radio. (Back)

Tuesday, October 27

Greg Ruggerio of the New York Free Media Alliance, a member of the 'Steal This Radio' Collective and one of the plaintiffs in their case against the FCC joined me for this day's meetings.

Andy Schwartzman and Cheryl Leanza of the Media Access Project (MAP).
MAP wants to be helpful and would like, to some extent, to be micro-radios voice in Washington. One of Schwartzman's first remarks was that people at the FCC have asked him what labors position is on micro-radio. He was quite reassured when I was able to report to him on the meeting with Peter Mitchell at IUE. Schwartzman emphasized that we need to present micro-radio as a viable option, workable technologically with the present system. He feels that Kennard (FCC Chair) definitely wants to do micro-radio and probably has some support on the Commission. He cautioned that if the issue gets thrown into Congress, we are in bad shape.

Schwartzman felt that an essential element in making something happen is to come up with a plan that was practical and administrable by the FCC which provided a logical spectrum management approach. We all agreed that we need engineering and other technical input on the IBOC problem.

We discussed the issue of commercialism, on which Schwartzman generally agreed with us, we also discussed the possibility of a mixed system and the advisability of looking at other countries models, for instance the Dutch time-sharing model. Finally, at Gregs initiative, we discussed the importance of having grass roots involvement with the work in Washington and, in general, discussed the idea of starting a new micro-radio rulemaking email list to continue the discussion and to feed ideas and information back and forth between Washington and the grassroots. We made it clear that grassroots activists such as Greg and the CDC will continue to be extremely active in this next phase of the Rulemaking and the political work on behalf of micro radio.

Jamie Love, Ralph Nader's specialist on technology and communications issues.
The meeting was more informal than the MAP meeting. A number of technological ideas were discussed. Love was very supportive of the idea and felt it would not be a problem to get a letter of support from Ralph Nader. We will also ask the organization to publicize the issue on their web page and in their newsletters. Love suggested we also contact the Benton Foundation and the Electronic Frontier Foundation.

Ben Kobb.
Kobb is an expert on spectrum issues; he's the author of 'Spectrum Guide' published by New Signals Press and, interestingly, a former graduate student of Dale Hatfield when Hatfield was teaching at Boulder, Colorado.

Ben pointed out that we are not totally reinventing the wheel. That the micro-radio movement has in common aspects with other efforts over the years to bring new communications technology to the forefront. He felt that the list of questions we received from the FCC was important and that the fact that they gave us these questions was a good sign. He recommended that we not try to use the sub-carriers because without them the likelihood of frequency interference is substantially reduced. With respect to IBOC, he feels that the engineering data is not all in on whether there is a true conflict with micro-radio or not. He points out that there are presently three competing digital radio proposals and that we can get the details on the first one from a petition recently filed with the FCC for a DARS service (Digital Audio Radio Service). Kobb pointed out that in some electronic technologies, licensing of the user of technology (as is now done with radio and TV) is not the approach but rather the equipment is licensed. He suggested that we look at that as an approach to the micro-radio situation. He felt that if we can get potential manufacturers of micro-radio equipment interested and involved at the FCC level, well bring some economic clout to our side. He said that micro-radio itself should be unlicensed (and the FCC hasn't got the enforcement resources for a licensing system) and that the modern solution is enforcement built into the equipment.

Kobb strongly urged that we get something into the FCC's next NPRM (Notice of Proposed Rulemaking) expected in December, saying that they are interested in exploring next generation, i.e., digital micro-radio, after they authorize it for use in the next few years with present analog technology. This will be the interest of manufacturers. (Back)

Wednesday October 28

National Association of Broadcasters.
Because I was late in setting up these meetings I sent a letter requesting a meeting to Jack Goodman of the NAB by Federal Express. He accepted by an e-mail message sent within an hour of receipt of my request. Goodman is Senior Vice President and General Counsel for Legal and Regulatory Affairs of the NAB. When I arrived, he greeted me at the elevator and we went into the larger office of his boss, Henry Bauman, Executive Vice President for Legal and Regulatory Affairs. I opened the meeting by assuring them that I was not there to steal their banner. When they told me that they never had gotten it back, I assured them that it was probably on someone's bedroom wall. Bauman said that what he really wanted to get was the skull and crossbones flag which been briefly raised during the demonstration. I told him I would try to get it back for him if he promised to fly it on the flagpole. That ended that.

Bauman (who Luke Hiken and Phil Tymon had met with in Las Vegas in April) is the senior lawyer for the NAB. I stressed that micro-radio was happening and that we expected the FCC to take some positive action on it and wanted to see if there was any possible common ground. (My purpose in the meeting was to see if it was possible to at least soften the NABs opposition, which will clearly be an important factor in what the FCC does.) Bauman and Goodman explained at some length their concerns with what they called spectrum integrity. They detailed some of the technical problems involved in transitioning radio from analog to digital within the same spectrum and on the same channels which it now uses. They strongly expressed the fear that if the transition does not go smoothly, FM radio could end up like AM, an area of few listeners and little of value. They seem to fear micro radio messing up the transition to digital radio.

They pointed out that a new service, direct satellite broadcasting of 100 channels of digital audio directly to the consumer has been authorized by the FCC and is starting. This is a different industry and competitive with the radio industry. It seems that radio fears the competition from direct satellite broadcasting. They said that AM was destroyed because of interference. The buzzword is spectrum integrity.

Bauman and Goodman raised many of the same questions that the FCC technical staff had raised with respect to power, licensing, and the like. I repeated to them the answers I had given to the FCC, pointing out that I would be taking these questions back to the micro-radio community and that I hoped we would be coming back with clear answers and convincing technical evidence that IBOC and micro-radio could peacefully co-exist.

What I believe came through from this meeting is the fact that the present situation on the FM band with micro-broadcasters is a classic civil disobedience situation. The civil disobedience, i.e., the presence of micro-broadcasters on the spectrum, threatens radios transition to digital and if, in their minds the quality of reception is degraded, the listeners will flee to the new competitive satellite service, thus breaking the industry.

Their willingness to meet, and their detailed and quite open exploitation of their problems suggests that if it seems clear they cannot crush the micro-radio movement, they are going to have to come to some terms with it.

John Crigler, of Haley, Bader & Potts.
Crigler has been Pacifica Radio's FCC counsel for many years, and I knew him from my days as Pacifica President in the early 80s. It had been suggested to me that if we wanted Pacifica's support, or even neutrality, we should open a discussion with Crigler and make sure he is satisfied on the technical and regulatory issues. This was a very friendly meeting. We discussed the FCCs Notice of Proposed Rulemaking (NPRM) with respect to the allocation of educational, non-commercial licenses (which had been issued just a few days before). Crigler told me that for several years applications for new non-commercial full power frequencies have been frozen because every time a non-commercial broadcaster or potential broadcaster finds an available frequency and files an application for a license on that frequency, religious broadcasters file competing applications. These have all been frozen because the FCC no longer wants to do comparative hearings. Hence, in the NPRM the FCC says that it is considering a number of alternatives, including lottery and point systems. Crigler seemed supportive of the notion of non-commercial micro-radio not being confined to the present non-commercial portion of the FM band as there will be high competition for that once the FCC figures out how to allocate licenses there.

Crigler felt that Pacifica would need reassurance that there would be an enforceable way of making sure that micro-radio complies with the appropriate regulations and he wanted to see specific answers to the questions regarding potential station size, method of allocating licenses, and the like. He was very supportive of the notion that micro-stations should be required to have a high percentage of locally originated programming and that they be rooted in community groups. He was very clear that the law and FCC regulations do not require a non-commercial licensee to be a non-profit corporation. He said that if they are non-profit entities recognized by state law as such, they meet the FCC tests. (Back)

MY OVERALL COMMENTS AND CONCLUSIONS

Putting together all of the information received, it seems clear that the FCC is going to do something about creating a new low power FM service. It looks like they have not decided exactly how to accomplish this and that the jury is out on whether it will be small and token or meaningful. The NPRM expected in late December is likely to pose a number of questions and alternatives.

There seems to be an opening to influence the outcome in four ways:

1. Coming up with technical information reassuring the FCC and the NAB about spectrum interference and about micro-radio not destroying the transition to digital radio;

2. Making solid administrative proposals with respect to licensing or other ways of allocating the micro spectrum;

3. Developing strong support in the civic sector, i.e., community groups, churches, labor, and the like; Developing a strong media presence so that there is a feeling of broad public awareness and support for low power non-commercial radio. Translating all that into support in Congress (or at least neutralizing opposition there);

4. Negotiating enough with potential opponents such as NAB and NPR to at least reduce the force of their opposition.