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News Archive: September 2007

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9/29/07 - FCC On Track to Meet/Beat Enforcement Record [link to this story]

As the graph to the right shows, the agency's Enforcement Bureau is well on pace to meet or exceed last year's record-breaking enforcement action effort.

Looking more closely at the data, one can see how FCC field agents are escalating the initial levels of the enforcement protocol much more quickly now (for example, the New York field office has cut the time between visit to warning letter down to as little as eight days).

Nevertheless, the FCC's not keeping such a good record when it comes to excersising actual muscle to shut pirate stations down: the number of Notices of Apparent Liability and actual forfeitures issued appears relatively unchanged from last year, and these actions remain but a small fraction of the Enforcement Bureau's overall enforcement effort. The number of raids/seizures conducted against pirate stations may edge up this year, but this is due to state-level enforcement efforts, most notably in Florida, where unlicensed broadcasting has been criminalized as a felony.

As far as what happens during the last three months of the year, it's anyone's guess: historically-speaking, there's a tertiary spike in enforcement actions against unlicensed radio stations in November, and it will be interesting to see whether this trend continues. Nevertheless, it's safe to say the agency's still a paper tiger, as unlicensed microbroadcast activity continues to blossom, especially in the nation's largest urban areas. However, recent developments, like the Enforcement Bureau's new online pirate complaint form and the possible installation of an anti-pirate attorney general, may change the game, but it's too early to tell by how much.

9/24/07 - Attorney General Nominee No Friend of Pirates [link to this story]

Recently, former federal judge Michael Mukasey was nominated to be the next Attorney General of the United States. There's lots of punditry going on within the mainstream media about his past legal leanings (surprise, they're reactionary!), but Mukasey's also been involved in microradio case law to a degree not experienced by any other contemporary Attorney General. It was back in 1998, when the Steal This Radio collective preemptively sued the Federal Communications Commission in hopes of stopping a station raid or other major, life-threatening enforcement action.

STR's lawsuit was not the most well-thought-out piece of legal argument. It took a shotgun approach to the FCC’s licensing authority: some claims alleged the Communications Act itself was unconstitutional because it gave the FCC excessive latitude to restrict access to the airwaves via the licensing mechanism; one claim specifically attacked the practice of auctioning off commercial radio licenses for limiting "free expression" only to those who can afford it. Another posited the radio spectrum as a public forum, which necessitated the strictest scrutiny of government attempts to regulate it; under such analysis, the broadcast licensing regime was overly restrictive and therefore also unconstitutional.

Then-judge Michael Mukasey, working the Southern District of New York, heard the case. He first used a "jurisdictional wiggle" to avoid addressing some of STR's more substantive allegations. After doing so, Mukasey savaged their claims. Steal This Radio’s open display of lawlessness coupled with the scarcity rationale were enough to doom their case. However, Mukasey’s ultimate reasoning disqualified them based on the preemptive nature of their lawsuit - they had no standing to seek redress for harm not yet suffered, irrespective of whether the rights in question exist.

Now, as (possible) Attorney General, Michael Mukasey will not be adjudicating such cases any more. But he will be in a position to change the entire federal prosecutorial stance on select "crimes," such as unlicensed broadcasting, so as to give the FCC more muscle with which to pursue pirates. For example, Mukasey could write a memorandum cordially requesting all United States Attorneys to be more cooperative to the FCC's pleas for enforcing its fines and/or pursuing injunctions or other criminal-prosecution tools.

After all, Mukasey has personal experience with the issue, and a stance on crimefighting in general which borders on jack-bootery. It's just another reason why he isn't an optimal choice for the job.

9/18/07 - Alternatives to HD Radio [link to this story]

Believe it or not, "HD Radio" is not the only digital audio broadcast system in the world. Alternatives do exist: one of the most promising is Digital Radio Mondiale (DRM) (which should not be confused with "digital rights management," a whole other (evil) animal), which has been jointly developed and deployed by some 30 countries around the world. It's an open-source standard, which has the potential to operate on either new or incumbent spectrum, and contains the potential to practically advance the service terrestrial broadcasting provides; it is not just a "better than analog" standard, featuring chimerical vaporware such as "buy buttons" for the download of digital music - services for which radio was not initially designed.

At present, while Digital Radio Mondiale is gaining traction around the world, it's all but been ruled out as a potential alternative to HD Radio in the United States, though that may be changing. A coalition of spectrum experts has been formed to advance the notion that broadcasters should be afforded the choice of picking between HD and DRM. As of now, this advocacy is restricted toward the possible deployment of Digital Radio Mondiale on the shortwave and AM bands only; although an FM version of the technology is under development, HD's relatively slow but steady adoption by U.S. FM broadcasters may make it a tough sell in the marketplace (even though some transmitter manufacturers are making dual-compatible HD/DRM transmitters, and there's no reason why receiver manufacturers couldn't follow suit).

On a related note, a coalition of public interest advocates, including the Prometheus Radio Project, Benton Foundation, Free Press, Media Access Project, New America Foundation, and the Center for Digital Democracy filed a petition for reconsideration of the FCC's latest report and order regarding the rollout of HD Radio. [Disclaimer: I provided some minor technical consultation to the authors of this document.] The petition asks the Commission to better justify the spectrum windfall it has handed to incumbent broadcasters - essentially letting them double or triple their footprints (and subsequent programming capacity) with no reasonable justification or renumeration (either in the form of cash or public interest program obligations).

It's anyone's guess whether the FCC will take these substantive critiques seriously and better defend its rationale, but my inkling is this (in conjunction with the coalition mentioned above) may be just the first volley in a long (albeit belated) public campaign for better accountability from both broadcasters and regulators - defining just what the "public interest" means in a digital radio world, and whether or not the anointed technological path to that world is the right one.

9/13/07 - FCC Now Taking Pirate Complaints Online [link to this story]

In a message circulated exclusively within the broadcast industry this week, the Federal Communications Commission has unveiled an online pirate radio snitch/complaint form.

The page, nestled within the Enforcement Bureau section of the FCC's website (though not yet linked publicly, as it's currently in "beta test"), requests information on the station's name, address, operating frequency, dates/times of operation, and whether or not the station has an online presence (MySpace page, blog, etc.). This information, once submitted, "will be automatically forwarded to the closest Field Enforcement Office" for further investigation.

This is a development with mixed consequences. On the one hand, it makes the complaint process much simpler for licensed broadcasters, who used to have to navigate somewhat complicated bureaucratic channels in order to make sure their concerns were heard. Thus, one might expect the number of complaints filed against pirates to rise. It certainly has taken the FCC long enough to harness the power of the Internets to help do its job.

However, it's already been conclusively demonstrated that the FCC does not have the resources to adequately enforce the license requirement: although the agency is stepping up the pace of its engagement with unlicensed stations, and appears to be more diligent in following up on repeat-offenders, it has yet to take concrete steps to effectively shut stations down (i.e., following through on the collection of forfeitures and conducting more station raids - elements of the enforcement process for which the FCC must rely on the cooperation of other federal agencies).

Because of its institutional weakness with regard to enforcement, it's hard for me to see how being flooded with information about active pirates makes much difference if the "long arm" of the law still lacks the muscle to follow through. If anything, the FCC should get a much clearer picture about the state and scope of the modern microradio movement from the potential data avalanche it is setting itself up to receive. And what's to stop folks from spamming the Enforcement Bureau with false reports, sending field agents on wild goose chases? That would just suck up the Bureau's already limited time and manpower available for pirate-policing.

Ultimately, if it remains mostly-impotent in its fundamental ability to address the "problem" of unlicensed broadcasting, this new online tool does nothing more than prove the points microbroadcasters are already making: we're here, we're growing, and we're not going away until you take the concept of public access to the airwaves more seriously.

On a related note, the DIYmedia Enforcement Action Database is long-overdue for an update - expect one over the course of this upcoming weekend.

9/11/07 - Boston Pirate Tickles FAA Frequency [link to this story]

The story, of course, makes national news because it feeds into the industry-foisted myth that pirate radio has the potential to make airliners fall from the sky. Buried within the copy is the admission, however, that the affected channel at Boston's Logan International Airport prevented "air traffic controllers from communicating with private aircraft, but not commercial airlines, on the frequency published to all pilots" [emphasis mine]. A follow-up story also notes that the dirty pirate station is but one of about a dozen known to broadcast regularly in the Boston metropolitan area, none of which are reported to interfere with anything.

This is not to belittle what a federal affidavit in this case called "a serious safety issue," and has been the cause of bigger problems in other countries. The fact that such instances are so rare in the U.S. says something about the technical proficiency of the modern microradio movement. No respectable microbroadcaster laments the raid of a station that can't be bothered to take their stewardship of the public airwaves seriously. But the money-quote reveals that the real beef "legitimate" Boston-area broadcasters have with pirates boils down to - surprise - the money:

More importantly, [Brockton Ward 5 city councilor Dennis] DeNapoli said, the pirate stations are taking advertising revenue that would otherwise go to licensed stations and other media outlets. "They're selling radio time, that's totally illegal," he said. "They're foreign language stations — Cape Verdean and Spanish. They just pop up on the dial here, there and everywhere."

Beyond the fact that DeNapoli's comment is generally incoherent, there's a reason such stations are proliferating. It's called market failure, represented by a public demand for localism to serve nascent and profitable niche markets that traditional stations have abandoned and pirates fulfill. Stories like these that blow the relative interference risk of pirate radio out of proportion help to maintain the broken status quo that is Boston radio.

9/10/07 - Settlement Reached in Calvary Satellite Network Split [link to this story]

The parties in the nasty power-struggle over control of the multimillion-dollar Calvary Satellite Network have come to a settlement agreement.

In a nutshell, the "Idaho faction" (Mike Kestler et al.) walks away with close to half the full-power FM stations in the CSN inventory and the overwhelming majority of translator stations (400+). The "California faction" (Chuck & Jeff Smith et al.) retains control of 29 full-power stations and just two translators, as well as most of those currently wending their way through the application- and construction-approval process at the FCC (with whom a copy of this settlement agreement has already been filed). The Idaho faction will make a symbolic payment of $200,000 to the California faction for the media empire it's wangled out of the deal, as well as bear the costs of doing the necessary FCC paperwork to formalize this schism.

The operation in Idaho also retains the right to continue operating under the trade name (but not the corporate identity) of "CSN International," even though Kestler's church and other business operations are, as part of the settlement, excommunicated from the Calvary Chapel franchise itself, up to and including the use of its associated branding.

Most importantly, "Neither party admits any liability or wrongdoing of any kind whatsoever, notwithstanding the terms and conditions of this agreement; and neither the payment of any consideration or anything contained herein shall be construed as an admission of any liability whatsoever by any party hereto or any other person." This includes an explicit dismissal of the California faction's salacious assertions that the Idaho faction used CSN money in a variety of inappropriate ways, and a covenant that neither party will ever speak to these issues again.

However, the notion of keeping the entire deal under wraps was blown by "considerable interviews, press coverage, blogging...and information related to this agreement has already been leaked, reported on, discussed publicly, or otherwise disclosed prior to [the settlement]."

This (perhaps) brings to a close yet another chapter in the never-trust-a-televangelist saga. It certainly won't be the last.

9/5/07 - Full-Power FM Filing Window Imminent; FCC in Chicago [link to this story]

Next month, the FCC will open a long-awaited filing window for applicants for new non-commercial FM radio stations. The FCC is currently considering placing certain parameters/limitations on how many stations a single entity can apply for - possibly in hopes of avoiding the flood of mass-applications for FM translator stations filed by greedy godcasters in 2003.

At present, the FCC is considering capping the number of full-power FM stations a single entity can apply for at 10, but it's waffling under pressure from some incumbent broadcasters, like the aforementioned godcasters and some public broadcast outfits.

So far, thousands of people have filed comments in this proceeding, urging the FCC to maximize diversity and minimize spectrum-hoarding. Individuals can file comments through a helpful web-form set up by Free Press. While comments are officially due tomorrow, late-filed comments will still become part of the record.

Groups interested in signing onto a more detailed, formal comment about why application limits are necessary for the upcoming full-power FM filing window should contact Pete TriDish at the Prometheus Radio Project for additional information.

At this point, if you haven't already started the planning process to apply for a radio station, you're pretty much behind the curve and on your own. However, hundreds of secular, social justice-based groups are gearing up for this event, which may very well be the largest (and last) substantial expansion of licensed, noncommercial radio the FCC may ever undertake. GetRadio (and especially its news section) is watching developments closely.

In other FCC news, the agency's announced it will hold its fifth public hearing on potential revisions to its media ownership rules on Thursday, September 20 in Chicago. Midwest media reform activists are mobilizing hardcore for this event; the Commissioners will be greated by a large and feisty crowd. Let's hope they listen.