In any three-way war, the enemy of your enemy is your friend.
The Federal Communications Commission’s initiative to legalize low power FM radio was a something many unlicensed broadcasters had supported (and worked to demonstrate) and some formally petitioned the FCC to undertake the initiative.
During 1999, while the FCC fleshed out its plans for LPFM, agents in the field claimed to have closed down 154 “pirate” stations.
While the agency won’t publicly admit it, in the wording of its LPFM rules was buried a small caveat to currently active unlicensed broadcasters that they could qualify for a license if they desired, so long as they shut down immediately.
However, the Commission’s final draft of the rule is so restrictive as to preclude many of these stations ever from legally going on the air. The ongoing battle with the broadcast industry on Capitol Hill over the still-unborn service’s future could emasculate any leftover potential.
Instead of the potential hundreds of new LPFM radio stations that could have taken to the air, legislation recently approved in the House of Representatives would limit the number to around 70.
Those could also be yanked off the air as early as next year, depending on if the NAB feels charitable or not.
And, under Congress’ reinterpretation of the LPFM rules, anyone who’s ever broadcast without a license will be permanently excluded.
Meanwhile, as the FCC tries to head off a Congressional override of LPFM, the Clinton Administration is planning to give the agency a $12.8 million increase in its 2001 budget – of which part will go to hire an additional 40 people to beef up its newly-created Enforcement Bureau (EB).
While this may appear ominous, it depends on exactly what duties these new employees will be assigned to.
Thanks to the “streamlining” that’s taken place at the FCC over the last year or so, the new EB is now a much larger organization than the old Compliance and Information Bureau (CIB) was – the EB handles the enforcement of practically all FCC rules and regulations – everything from complaints about radio “pirates” to phone slamming.
“…And We’re Here to Help You”
David Solomon, the FCC’s Enforcement Bureau chief, has publicly indicated that some of those new jobs will be for additional “radio cops” out on the beat shutting down unlicensed radio stations.
In addition, the EB’s new website includes a “fact sheet” with a list of frequently asked questions about the power of its field agents to inspect an unlicensed radio station. Two of the Q-and-A nuggets included on this “fact sheet” read as a blatant attempt to mislead citizens of their Constitutional rights:
Q: The FCC Agent standing at my door does not have a search warrant, so I don’t have to let him in, right?
A: Wrong. Search warrants are needed for entry involving criminal matters. One of the requirements as a licensee, or non-licensee subject to the Commission’s Rules, is to allow inspection of your radio equipment by FCC personnel. Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection. Even radio stations licensed under a “blanket” rule or approval, such as Citizen’s Band (CB) Radio, are subject to the Commission’s inspection requirement.
Q: Well then, if I am a low-power broadcaster and don’t have an FCC license, they need a search warrant, right?
A: Wrong again. The FCC agents have the authority to inspect all radio equipment; even if you do not have a license, the FCC can still inspect your equipment. Section 303(n) of the (Communications Act of 1934) gives the FCC the right to inspect all “stations required to be licensed.” This language covers your low-power radio station. The FCC agents are inspecting the equipment, not searching your house.
Like any good federal political creature, the FCC is playing both sides of the fence here. It’s trying to appease microradio activists with increased access to the airwaves, hoping they will either apply for or help out with a legal LPFM station instead of continuing to broadcast without a license.
Those who don’t get licenses (or never could) will face an increased effort to shut them down, apparently by any means necessary.
Not Backing Down
The problem is the FCC hasn’t yet gone far enough in opening up access to the FM band. Many saw the original proposal as a slap in the face, and they’re furious about the current Congressional mischief.
One of the movement’s most public figures, Free Radio Berkeley’s Stephen Dunifer, has even called a “Micropower Council of War” in May to redouble efforts to help unlicensed stations bloom like the flowers of spring.
Dunifer’s plans not only include the promotion of increased activity on the FM band, but also on the AM and TV bands. The National Association of Broadcaster’s annual radio conference will be held in Dunifer’s backyard of San Francisco this September; plans are already underway to give broadcast executives an unpleasant welcome with the goal of sending them home early.
The last surge of new unlicensed stations to hit the airwaves occurred as a backlash to the passage of the Telecommunications Act of 1996. That time, the FCC’s enforcement agents were saturated and ultimately overwhelmed, unable shut down pirates faster than they started up. This helped lead to the legalization of LPFM.
The surge this time may be even larger – especially if those unlicensed stations that voluntarily shut down while the FCC formulated its LPFM plan give up hope on legalization. But it’s certainly apparent that the FCC is preparing for it somewhat this time.
There are no true friends of free radio in this war of media access. There never really was.
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